Cases violating ICCPR art 23(1) (potential) (2)

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)

Bakhtiyari & Bakhtiyari v Australia (Committee object (1), 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.

Madafferi & Madafferi v Australia (Committee object (1), 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.