Expulsion of the author from his country of residence where he lived since he was a child

Facts

The author is John Isley, a national of the United Kingdom who arrived in Australia as a child with his family and has lived in Australia since 1971. All of his family members reside in Australia and have citizenship. He has always regarded himself as Australian. In 2007, he was granted a visa which permits him to reside permanently in Australia. He was convicted of “incest by a step-parent,” an “indecent act with a child under 16,” and an offense of “make/produce child pornography.” As a result, his visa was canceled and he was subject to immigration detention. He applied for a revocation of the visa cancellation which was denied. He applied for judicial review of the decision, and the court dismissed his application finding the revocation decision lawful. He claims that the State party violated his rights under article 14 relating to fair trial protections and articles 17 (1), and 23 (1) relating to family rights.

Admissibility

The author’s claims under article 14 of the Covenant are inadmissible because proceedings relating to deportation of aliens do not fall within the ambit of the determination of “rights and obligations in a suit of law” within the meaning of article 14 and are incompatible ratione materiae with the Covenant, and the author did not raise article 13 in his communication. His remaining claims were sufficiently substantiated and are admissible.

Merits

The Committee considered the State party’s decision to deport the author to be an interference with his family life where he would leave behind all of his family for a country where he has no family ties whatsoever. The interference is lawful because it is provided for in the State party’s Migration Act, but the Committee found that the deportation would be arbitrary because the deportation of a definite nature with serious family consequences is disproportionate to the legitimate aim of preventing further crimes, especially given the lapse of time between the commission of offenses and the author’s deportation; the absence of reoffending while he was on bail; his good behavior since his convictions and rehabilitation efforts; and his placement on a register of sex offenders and monitoring of his conduct. Additionally, the State party failed to consider whether less detrimental means were available. Therefore, the State party violated the authors rights under articles 17 and 23 of the Covenant.

Recommendations

The State party should, inter alia, to take appropriate steps to provide the author with adequate compensation.

Implementation

Deadline for implementation: 15 January 2024