Cases about protection of family & children (8)

Bakhtiyari & Bakhtiyari v Australia (HRC, 2003)

Remedy's assessment: Unremedied

A family of Hazara asylum seekers claiming to be from Afghanistan was detained on arrival in Australia. Australia determined that the Bakhtiyaris’ claim to be from Afghanistan was not credible; doubt about their origins undermined their refugee claim. The HRC requested a stay of deportation. In its Final Views, the HRC decided that the long-term detention of the family was arbitrary, beyond judicial review, and had not been ‘guided by the best interests of the children’. Further potential violations were found. It proposed that Australia should pay appropriate compensation for these violations. Australia deported the family to Pakistan in 2004, without compensation.

Read more on Bakhtiyari & Bakhtiyari v Australia.

Blessington & Elliot v Australia (HRC, 2014)

Remedy's assessment: Unremedied

Bronson Blessington and Matthew Elliot were children who committed violent crimes for which they were sentenced to life in prison without parole. The UN Human Rights Committee found that children should never be sentenced to life in prison without a realistic chance of release and recommended Australia reform its laws without delay to ensure the possibility of release is realistic and regularly considered. The two men ought to be given the benefit of the revised legislation and compensated for breaches of the International Covenant on Civil and Political Rights.

Read more on Blessington & Elliot v Australia.

Leghaei et al. v Australia (HRC, 2015)

Remedy's assessment: Unremedied

An Iranian couple and their 3 sons migrated to Australia in 1994 on temporary visas and the following year a daughter was born. The family applied for permanent residency, which was refused owing to an undisclosed assessment by Australia’s domestic security agency, ASIO, concerning the father, Dr Leghaei.

Despite 16 years lawful residence in Australia, without ever being charged or warned for any reason, the secret security assessment against Dr Leghaei was upheld on appeal. Dr Leghaei’s wife and children all had permanent residency or citizenship, but his wife and 14yo daughter chose to accompany him when he was obliged to leave Australia in 2010.

The Committee found that Australia did not provide Dr Leghaei with “adequate and objective justification” for his expulsion and denied him “due process of law”. “Disrupting long-settled family life” by expelling the father of a minor child and forcing the family to choose whether to accompany him constitutes arbitrary interference with the family, in violation of articles 17 and 23(1).

Read more on Leghaei et al. v Australia.

MGC v Australia (HRC, 2015)

Remedy's assessment: Unremedied

MGC is a US national who lived in Australia as an adult for 15 years. He committed a series of offences involving fraud, pleaded guilty and was convicted. Because his prison sentence exceeded 12 months, his visa was cancelled and he was detained for 3.5 years prior to deportation. MGC, having an Australian son, alleged his prolonged detention and permanent deportation interfered with his family. He also alleged his detention was arbitrary. The HRC agreed his detention was arbitrary, but not that the interference with his family was arbitrary.

Read more on MGC v Australia.

Madafferi & Madafferi v Australia (HRC, 2004)

Remedy's assessment: Partially remedied

Mr Madafferi, an Italian in Australia, overstayed his tourist visa. He came to the attention of Australian authorities when he was sentenced by an Italian court in absentia. In the meantime, he had married an Australian and fathered Australian children, but his application for a spouse visa was refused on character grounds and he was detained, pending deportation. Mr Madafferi developed a ‘stress disorder’ in detention and was admitted to a psychiatric hospital for 6 months. The HRC requested a stay of deportation, which was initially refused. The Committee found that conditions in immigration detention were inhuman, and that there would be arbitrary interference with the family, in conjunction with treaty provisions protecting the family and children, if Mr Madafferi were deported. In 2005, his deportation order was overturned ‘on humanitarian grounds’. The HRC has deemed Australia’s response satisfactory.

Read more on Madafferi & Madafferi v Australia.

Nystrom v Australia (HRC, 2011)

Remedy's assessment: Partially remedied

Stefan Nystrom was born in Sweden and entered Australia when only 27 days old. His family assumed he was a naturalised Australian. Mr Nystrom began hearing voices in childhood and has suffered psychiatric symptoms throughout his life. From the age of ten, he began offending, usually under the influence of alcohol. At the age of 30, seven years after his last offence, during which time he had been law-abiding, steadily employed and recovering from his alcoholism, Mr Nystrom’s permanent visa was cancelled on character grounds. An appeal to the Federal Court found him to be ‘an absorbed member of the Australian community with no relevant ties elsewhere’. The Immigration Minister appealed successfully to the High Court. Mr Nystrom was deported to Sweden in 2009 and has since been homeless, in homeless shelters, in prison and in psychiatric care. The HRC found Mr Nystrom’s deportation constituted arbitrary interference with his right to family and his ‘right to enter his own country’, which is Australia. Further, his expulsion was arbitrary – occurring so long after his offending. He should be permitted and materially assisted to return to Australia. Australia has refused to allow Mr Nystrom back into Australia, but says it has made policy reforms to guard against repetition.

Read more on Nystrom v Australia.

Winata & Li v Australia (HRC, 2001)

Remedy's assessment: Partially remedied

Indonesians Hendrick Winata and So Lan Li arrived in Australia in the 1980s and overstayed their visas, undetected. They had a son, who obtained Australian citizenship on his 10th birthday. The next day, his parents applied for refugee status. Their application was rejected and Immigration ordered their deportation. The HRC found that to deport Mr Winata and Ms Li would arbitrarily interfere with their family and breach Australia’s obligation to protect families and children. Australia rejected the Committee’s Views, but did not deport Mr Winata and Ms Li, who eventually obtained permanent residency in Australia.

Read more on Winata & Li v Australia.

Zoltowski v Australia (HRC, 2015)

Remedy's assessment: Unremedied

Mr Zoltowski is a Polish-Australian who moved to Australia with his wife and their 2-year-old son. After nearly 3 years, the family returned to Poland, with the intention of permanent relocation. However, Mrs Zoltowski soon changed her mind, and took the boy to Australia without his father’s consent. The couple divorced, with Polish courts granting sole custody of the child to his father, and the Family Court of Western Australia granting sole custody to his mother.

Mr Zoltowski applied under the Hague Convention on Civil Aspects of International Child Abduction for the return of his son to Poland. Eighteen months later, when his first application was unsuccessful, he applied under the Hague Convention for access and custody. The WA Family Court granted Mr Zoltowski supervised access to his son in Australia, two-and-a-half years after he had first applied.

The UN Human Rights Committee found that Australia’s failure to guarantee personal relations and regular contact between Mr Zoltowski and his son constituted arbitrary interference with family life and violation of the right of families and children to protection. Also, Australia’s failure to deal expeditiously with Mr Zoltowski’s custody and access applications amount to a violation of his rights concerning fair hearings. An effective remedy would include ensuring regular contact between father and son and compensation for the violations of their rights. Australia must also act to prevent similar violations recurring.

Read more on Zoltowski v Australia.