The case is John Falzon v. Australia. Views of the UN Human Rights Committee dated May 22, 2024. Message No. 3646/2019.
In 2019, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
At the age of three, the author emigrated from Malta to Australia with his Maltese parents. The author claimed that the State party had violated his rights by expelling him to Malta. It was alleged that the State party had arbitrarily deprived the author of the right to enter his own country. Also, the State party did not give due importance to the author's family life when deciding to cancel his visas and deport him. The author has been arbitrarily detained in administrative detention for almost two years. The author's imprisonment after a criminal conviction and the subsequent cancellation of his visas, in fact, became a double punishment for the same crime. The Committee found a violation of article 12, paragraph 4, of the Covenant, as well as article 9, paragraph 1, of the Covenant.
As can be seen from the text of the Considerations, on March 10, 2016, after almost eight years of imprisonment and shortly before he was due to be eligible for parole, the author was notified that he was subject to deportation due to the cancellation of his visa by a representative of the Minister of Immigration and Border Protection. The notification was issued in accordance with section 501 (3A) of the Migration Act on the grounds that, as it was established, the author had failed the statutory integrity check due to his criminal record for a serious crime. The author was asked to file a motion to overturn the Minister's decision, which he did on March 15, 2016. He presented letters of support from family and friends, as well as a psychologist's report describing how deportation would affect him. On March 14, 2016, the author was transferred from a penitentiary institution to an administrative detention center. He spent six weeks in a temporary detention center for foreign citizens before being deported, and then was transferred to a detention center on O. Christmas.
The Committee's legal position: Referring to paragraph 20 of general comment No. 27 (1999) on freedom of movement, the Committee notes that the concept of "one's own country" is not limited to citizenship in the formal sense, i.e. citizenship acquired by birth or appropriation; it applies at least to persons who, by virtue of their special circumstances, relations with the country in question or their claims against that country cannot be considered as foreigners. In this regard, the Committee also refers to its jurisprudence, according to which factors unrelated to nationality can contribute to the establishment of close and lasting ties between an individual and a country, ties that may be stronger than ties based on nationality. The concept of "one's own country" involves consideration of issues such as long-term residence, close personal and family ties and a desire to stay in this country, as well as the absence of such ties with other countries (paragraph 7.2 of the Considerations).
Referring to paragraph 21 of general comment No. 27 (1999), the Committee notes that even interference with the right to enter one's own country provided for by law must be consistent with the provisions, aims and objectives of the Covenant and must in any case be reasonable in the relevant specific circumstances. The Committee recalls that there are very few, if any, circumstances in which denial of the right to enter one's country would be reasonable (paragraph 7.4 of the Considerations).
The Committee recalls its general comment No. 35 (2014) on freedom and personal integrity, according to which arrest or detention may comply with domestic law, but nevertheless be arbitrary. The concept of "arbitrariness" should not be equated with the concept of "illegality", but should be interpreted more broadly, including elements of unacceptability, injustice, unpredictability and non-compliance with procedural guarantees. Detention for immigration control purposes is not arbitrary in itself, but must be justified on grounds of reasonableness, necessity and proportionality in the light of the circumstances and must be subject to review over time (paragraph 7.7 of the Considerations).
The Committee's assessment of the factual circumstances of the case: it was emphasized that the author had not left Australia until his deportation in 2018. He had lived in Australia for over 60 years, had never declared his intention to settle elsewhere, and had virtually no memory of his life in Malta. The Committee also noted that before his deportation, the author had been educated in Australia, married, and had children and grandchildren there. All of his closest relatives are Australian citizens, and he claimed that he always paid taxes and made social contributions in this country. The Committee found that the author has no close relatives in Malta and is not familiar with the culture and language of that country. The Committee pointed out that, despite the fact that the author had not applied for Australian citizenship, he had demonstrated that he had close and strong ties with Australia, which were stronger for him than those based on citizenship. The Committee concluded that Australia was the author's own country within the meaning of article 12, paragraph 4, of the Covenant (paragraph 7.3 of the Views).
In the Committee's view, the State party has not explained whether, before deciding to expel the author, it considered the possibility of using less drastic measures to achieve its stated goal of protecting Australian society from harm, given that, from a practical point of view, Australia was the only country the author knew and he had no knowledge of. He had no ties to Malta, and also did not know the local language. The Committee found that the author's expulsion to Malta was unjustified in the circumstances because It prevented his return to Australia and was disproportionate to the legitimate aim pursued, which was to protect Australian society from harm (paragraph 7.5 of the Considerations).
The Committee has noted the author's claim, in accordance with article 9, paragraph 1, of the Covenant, that his administrative detention in an immigration center after his visa was cancelled was arbitrary (paragraph 7.6 of the Views).
The Committee stressed that the author should not have been placed in an immigration center. It took note of the State party's information that, after the author was placed in an immigration centre, he was given the opportunity to voluntarily leave Australia while his legal claims were being considered, but chose to remain in the immigration centre. Since the State party's proposal to release the author from immigration detention was conditional on his departure from his own country, it did not constitute a reasonable alternative to detention. The Committee found that the author's detention from 14 March 2016 to 1 June 2018 was arbitrary, in violation of article 9, paragraph 1, of the Covenant (paragraph 7.9 of the Views).
The Committee's conclusions: The facts presented revealed a violation of article 12, paragraph 4, of the Covenant, as well as a violation of article 9, paragraph 1, of the Covenant (paragraph 8 of the Views).