Deportation to Malta of a long-time non-Australian citizen with criminal background

Facts

The author, John Falzon, a national of Malta, arrived in Australia as a child with his family and has lived there since 1956. He has been married to an Australian citizen for 32 years, and all of his extensive family (five brothers, two sisters, three children, and ten grandchildren) reside in Australia and hold Australian citizenship. He has always regarded himself as Australian. In 1994, he was granted an Absorbed Person Visa and a Class BF Transitional Visa, allowing him to permanently reside in Australia. The author was convicted of drug trafficking in 1995 and sentenced for repeat offences in 2008 to 11 years in prison. In 2016, shortly before the possibility of parole, his visa was cancelled following section 501(3A) of the Migration Act, and he was placed in administrative detention. The State party based its decision on the author’s failure to become an Australian citizen and his severe violations of Australian law. The author applied for judicial review of the revocation of his visa, but his appeal was ultimately rejected by the High Court. In 2018 he was deported to Malta. The author claims that the State party violated his rights under article 9 (1), article 12 (4) concerning the right to enter one’s own country, article 14 (7) relating to the prohibition of double jeopardy, and articles 17 and 23 (1) concerning family rights.

Admissibility

The Committee held that the alleged violation of double jeopardy under article 14 (7), read in conjunction with articles 9, 12 (4), and 17 of the Covenant, was inadmissible under article 3 of the Optional Protocol since administrative proceedings for the expulsion of non-citizens, as well as administrative proceedings following a criminal conviction, fall outside the ratione materiae of articles 14 and 14 (7). The claims under articles 9 (1), 12 (4), and 17, read in conjunction with articles 2 (2) and 23 (1), were sufficiently substantiated and therefore admissible.

Merits

The Committee found that the deportation was unreasonable and violated article 12 (4) of the Covenant. It considered that since the author had spent over 60 years in Australia and that his entire family, with whom he had a close connection, resided in Australia, Australia was, despite not having Australian nationality, his own country. On this basis, the Committee rejected the State party’s argument that the author had never demonstrated allegiance to Australia through his actions, such as applying for citizenship (for which he was eligible). The Committee reaffirmed that States parties are under an obligation not to arbitrarily prevent individuals from returning to their own countries and that domestic laws must, in any event, be reasonable. The Committee noted that the State party had failed to duly inform the author that criminal reoffending could result in the cancellation of his visa and had not sufficiently considered his personal circumstances— specifically, that he had no ties to Malta and no knowledge of its culture or national language. Furthermore, the Committee regarded the deportation as disproportionate compared to the aim of protecting the Australian population from harm, as the State party had failed to consider other less severe measures.

The Committee also found that the author’s detention pending deportation by the State party violated article 9 (1) in light of the unlawful nature of the deportation. The deportation detention was, therefore, arbitrary and did not meet the requirements of reasonableness, necessity, and proportionality. Furthermore, since the author’s release from deportation detention was conditioned upon his voluntary departure from Australia, the Committee held that this condition did not constitute a reasonable alternative.

Recommendations

The State party should:

• (a) to ensure that the author has the opportunity to re-enter Australia and to provide him with adequate compensation;
• (b) prevent similar violations in the future.

Implementation

Deadline for implementation: 14 September 2024.