View Adopted: 2022.03.25
The authors of the communication are Nigerian nationals along with N.M.T., an Australian national who is the daughter of O.H.D., one of the authors. One of the authors, B.O.M., was married to M, who converted from Islam to Christianity. Due to M’s family’s behaviour and threats, the authors moved to Australia in 2013 and applied for a protection visa. Their applications were refused due to the absence of a real risk of being persecuted. O.H.D claims to maintain strong ties to Australia due to his career as well as his daughter. The authors contend that O.H.D.’s removal would deprive him of his family life. Even if O.H.D. were to take his daughter to Nigeria, she would be at a risk of irreparable harm with the other authors, including ill-treatment from M’s family, financial hardship, and ostracism. The authors claim that their deportation would violate their rights under articles 2(1) (non-discrimination), 7 (torture, cruel, inhuman or degrading treatment or punishment), 17 (privacy), 23(1) (family life) and 24(1) (child rights) of the Covenant. Further, they allege violations of several provisions of the Convention on the Rights of Child and the Convention relating to the Status of Refugees.
The State party submitted that the claim was inadmissible as they were insufficiently substantiated and hypothetical as the authors had returned to Nigeria in the meantime. It further claimed that national jurisdictions had assessed that the authors would not be subject to a real risk of irreparable harm. It further alleges that O.H.D. does not have a sufficiently close connection to his daughter, whose mother is her primary caregiver, and therefore that it does not interfere with his family life. The authors claimed that since their return, they faced persecution and went into hiding, and further that the State party’s interference with their family life was arbitrary, not reasonable, necessary or proportionate.
The Committee noted that O.H.D. had a sufficiently close relationship with N.M.T. to bring a claim on her behalf and that as a result, the requirements under article 2 of the Optional Protocol were met. With regard to the claims under the Convention on the Rights of Child and the Refugee Convention, article 1 of the Optional Protocol limits the material scope of its competence to violations of rights under the Covenant. As the violations of other treaties fall outside this scope, the Committee considered those claims inadmissible. In as much as the article 2 violation, it noted that as the provisions laid down general obligations for State parties and could not give rise to separate claims, the authors’ claims under article 2 were inadmissible.
Further, the Committee recalled that there exists a high threshold for providing substantial grounds to establish a real risk of irreparable harm and considerable weight should be given to the State party’s assessment of the facts to determine the same. It noted that the domestic authorities had found that the authors had made inconsistent and improbable statements while the authors had failed to substantiate any errors in these findings. With regard to the family life claims, it noted that the authors had not refuted the State party’s claim that its interference was not arbitrary or unlawful as well as substantiated how denying O.H.D. 's residence would affect his relationship with his daughter. Finally, the Committee noted that it would not consider violations resulting from their return without any information on the situation prevailing after return. Therefore, the Committee concluded that the claims under articles 7, 17, 23 and 24 were inadmissible.
By: Smrithi Ramakrishnan