Legitimacy of immigration detention and removal of a permanent resident with a criminal record

Facts

The author of the communication is Graham Cayzer. He was born in the UK and moved to Australia at the age of 5. His wife and children also reside in Australia. In 2011, he  was sentenced to four years of imprisonment for maintaining sexual relations with a person under 17 years of age. He was released on parole in 2014. A few months later, the Minister for Immigration decided to cancel his visa, as he was found to have failed the “character test” prescribed by Australian law. Cayzer appealed the Minister’s decision on the grounds that he had obtained Australian citizenship and that, in any case, he was a “person of the Commonwealth”. Cayzer was held in immigration detention from November 2014  until December 2017, when he was removed to the UK. The author alleges that his detention was arbitrary, in violation of article 9(1) (right to liberty and security). He also claims that the cancellation of his visa was illegitimate under articles 12(1) and 12(4) (freedom of movement). He further argues that Australia violated articles 14(7) (prohibition of double jeopardy) and 15 (prohibition of retroactive punishment), since the cancellation of his visa, detention and deportation amount to a second punishment for the same crime. Cayzer also claims that Australia, by separating him from his family, has failed to adequately protect his children, in violation of article 24(1). Lastly, he alleges that the State party, by deporting him, violated article 25(1) (right to vote).

Admissibility

The Committee notes that article 14 is not applicable to immigration proceedings and that administrative proceedings consequent to a criminal conviction do not constitute double punishment. Therefore, it declares the author’s claims under articles 14(7) and 15 inadmissible ratione materiae. The Committee also declares inadmissible ratione personae the claim under article 24(1), since nothing in the communication indicated that it was being submitted on behalf of other members of the author’s family. Moreover, the Committee finds that the claim under article 25 has not been sufficiently substantiated, and is thus inadmissible. The author’s remaining claims, under articles 9 and 12, are admissible.

Merits

The Committee notes that the author’s application for judicial review of the decision to cancel his visa was heard by the Federal Administrative Court, and that the author does not question the procedural fairness of these proceedings. It also observes that the Minister comprehensively assessed all the facts presented by the author. Thus, it concludes that the decision to cancel his  visa was not arbitrary. Moreover, the Committee notes that the author’s detention, although not of determined length at the outset, was subject to judicial review multiple times, and the consequences of the detention for the author and his family were duly weighted against the risk he was deemed to represent for the community. Therefore, it concludes that, in light of the purpose of removal and the risk of recidivism, the detention was not arbitrary. As far as the claims under article 12 are concerned, the Committee recalls that, when a country of immigration facilitates acquiring its nationality and the immigrant refrains from doing so, the country of immigration does not become “his own country” within the meaning of article 12(4). This rule does not apply only in highly specific circumstances. The Committee concludes that, since the author  failed to acquire Australian citizenship and his case does not present any specific circumstances that would warrant a broader interpretation of article 12(4), Australia is not “his own country”, and the State party did not violate article 12 by removing him.