Cases violating ICCPR art 23(1) (potential) (3)

Note that committees can record actual or potential violations.

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

ICCPR art 23(1)

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.

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.

Z v Australia (HRC, 2015)

Remedy's assessment: Unremedied

Mr Z 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 Z 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 Z 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 Z 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 Z 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 Z’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 Z v Australia.