MGC v Australia (HRC, 2015)

Violations: ICCPR art 9(1)

Remedy's assessment: Unremedied

The UN says:

[Australia is obliged to provide MGC with] an effective and appropriate remedy, including compensation. [Australia] is also under an obligation to prevent similar violations in future. In this connection, [Australia] should review its migration legislation to ensure its conformity with the requirements of article 9 of the Covenant.

HRC (2015)

MGC is a US national born in 1970. He came to Australia aged 23 on a tourist visa, and in 1999 obtained a spouse visa when he married an Australian. Between 1998 and 2002, MGC committed a series of offences involving defrauding the Australian government, banks and other institutions. He pleaded guilty and was sentenced to 18 months in prison for each of 6 offences. He and his wife divorced in August 2004.

After 2.5 years in prison, he was released early on parole in 2004 and complied with his parole conditions.

MGC had a son in a new relationship, born on 20 July 2005. The child is Australian by descent from his Australian mother. That relationship also ended. MGC continued to visit his baby regularly.

However, because MGC had been sentenced to a prison term of more than 12 months, his visa was cancelled in accordance with section 501 of the Migration Act and, on 20 October 2005, he was arrested and sent to Baxter detention centre in South Australia, pending deportation. His son was 3 months old at the time.

In May 2006, while MGC was in immigration detention, he obtained access orders from the Federal Magistrates Court, with the consent of his ex-partner, allowing him contact with his son.

MGC appealed the decision to cancel his visa to the Administrative Appeals Tribunal without success. Hearing the case in February 2007, the AAT considered the best interests of the child, but decided that MGC had ‘no established relationship’ with his son, and had little prospect of establishing such a relationship since he was in a remote detention camp and estranged from the child’s mother, who apparently lived in Brisbane. On the contrary, the AAT found that the risk that MGC might re-offend meant it was in the best interests of the child that his father be deported.

MGC then appealed to the Federal Court and twice to the full bench of the Federal Court, arguing that the court order granting him access rights to his son implied it was in the child’s best interests to have contact with his father, but his appeals failed. The Full Court noted that the AAT was not obliged to take into account Australia’s international human rights treaty commitments. These proceedings – in which Australia claims MGC had legal representation, but MGC claims he did not – concluded in March 2009.

Meanwhile, in September 2008, MGC applied for a refugee visa, refusal of which would allow him to appeal to the Immigration Minister to exercise his power under section 417 of the Migration Act to intervene in exceptional cases. MGC asked the Minister to protect his family’s right to protection under the Covenant and his son’s rights guaranteed in the Convention on the Rights of the Child (“a child shall not be separated from his or her parents against their will ...” art. 9), but his request was refused.

In April 2009, MGC petitioned the HRC, which declined to intervene to prevent his deportation, and he was deported to the US on 8 May 2009. His son was nearly 4 years old at this point, and MGC had not seen him since he was 3 months old. MGC himself had lived in Australia for nearly 15 years, and spent over 3.5 years in immigration detention. MGC alleged, inter alia, that his detention was arbitrary. He sought compensation and return to Australia. He maintains contact with his son from the US by Skype and telephone.

In responding to the communication, Australia argued that MGC and his son, although biologically related, had not had sufficient contact to constitute a family, and therefore did not require the protection envisaged in the ICCPR.

In its final views, the HRC determined that MGC and his son do constitute a family, for the purpose of the ICCPR, and that the state did intervene in this family, but that the interference was not arbitrary as per article 17. It dismissed a number of other allegations as inadmissible.

However, the Committee did find MGC’s detention was arbitrary. It found Australia “made no individual assessment of the need to maintain the author in immigration detention”, did not demonstrate “on an individual basis that the author’s continuous and protracted detention was justified for such an extended period of time”, nor that “other, less invasive, measures could not have achieved the same end” of ensuring MGC was available for deportation if necessary. Further, MGC was “deprived of the opportunity to challenge his indefinite detention in substantive terms.” The Committee emphasised that judicial review of detention “must include the possibility to order release if the detention is incompatible with the requirements of the Covenant.” Thus the Committee found a violation of article 9(1).

Australia is obliged to provide MGC with “an effective and appropriate remedy, including compensation.” Australia “is also under an obligation to prevent similar violations in future”, requiring a review of “its migration legislation in ensure its conformity with the requirements of article 9 of the Covenant.”

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