View Adopted: 2021.10.27
The author is a national of Sri Lanka claiming a violation of articles 7 and 17 in conjunction with article 23 of the Covenant. The applicant was tortured and interrogated by the Malaysian authorities on several occassions between 2008 and 2012 because of his perceived political affiliation. he arrived in Australia in June 2012 and asked for a protection visa. His application was rejected and the rejection was confirmed by all domestic courts. He asked for Ministerial Intervention in November 2017 and July 2018, which were both denied. Instead, he was issued a deportation notice for the 16th of July 2018, although his wife and children have been issued a safe heaven enterprise. He claims that the deportation amounts to a violation of article 7 of the Covenant because there is a risk of torture. There is a violation of article 17 in conjunction with article 23 (1) because the expulsion would amount to a separation with his family.
The communication is admissible as regards article 17 and 23 (1). The claim under article 7 was withdrawn.
The Committee considers that separating the author from his wife and child amounts to an interference with the rights under article 17. The Committee has also to determine whether the interference is arbitrary or unlawful and whether insufficient protection has been afforded to his family by the State under article 23 (1) of the Covenant. The Committee considers that the author's removal pursued a legitimate objective, which is the enforcement of the State's immigration law. However, the Committee notes that there were some important changes in the author's life, namely his marriage, the birth of his daughter and the granting of a Safe Heaven Enterprise. Such new circumnstances could have only been brought through ministerial intervention. The Committee considers that the decision to refuse ministerial intervention was not based on an individual assesment of the author's claim, in particular regarding the reasonableness, necessity and proportionality of the measure of the author's removal. There is also no specific reason for the decision not to refer the application to the minister, there is a lack of reasoning and there is only general reference to the claim that the interference was lawful and non arbitrary. The Committee considers that the order of expulsion generated excessive hardship with no prospect of reunification in Sri Lanka and constitutes a disproportionate interference with the author's family life.
The State party must provide the author with an effective remedy and make full reparations (i.e. return to Australia, adequate compensation, review of the author's case) and prevent similar violations in the future.
27 April 2022