Hendrick Winata and So Lan Li v. Australia

International Covenant on Civil and Political Rights: Articles 12 paragraph 1, 13, 17, 23 paragraph 1 and 24 paragraph 1

Optional Protocol to the International Covenant on Civil and Political Rights: Article 2

General Comment No. 15 - The position of aliens under the Covenant; and General Comment No. 16 - Article 17 (The right to respect of privacy, family, home and correspondence, and protection of honour and reputation)

The authors of the communication are Hendrik Winata, born 9 November 1954 and So Lan Li, born 8 December 1957, both formerly Indonesian nationals but currently stateless, also writing on behalf of their son Barry Winata, born on 2 June 1988 and an Australian national.

On 24 August 1985 and 6 February 1987, Mr. Winata and Ms. Li arrived in Australia on a visitor’s visa and a student visa respectively. In each case, after expiry of the relevant visas on 9 September 1985 and 30 June 1988 respectively, they remained unlawfully in Australia. In Australia Mr. Winata and Ms. Li met and commenced a de facto relationship akin to marriage, and had a son, Barry, born in Australia on 2 June 1988. On 2 June 1998, Barry received citizenship by virtue of birth and being 10 years in Australia. On 3 June 1998, the authors applied for a protection visa basing the need to be protected from persecution in Indonesia. This was however denied by the Minister of Immigration and Multicultural Affairs delegate on 26 June 1998. On 15 October 1998, an application for parent visa (subclass 103) was lodged but was subsequently refused. Failing several other avenues, the authors faced deportation to Indonesia where they would in any case have had to reacquire citizenship since they had not been in the country for many years.

The authors submitted that their removal to Indonesia would violate their rights and their child’s rights under Articles 17 (protection against arbitrary or unlawful interference with family), 23 paragraph 1 (protection of family) and 24 paragraph 1 (protection of child) of the Covenant. The authors submitted that the protection of unlawful or arbitrary interference with family life as recognised under Article 17 and their de facto relationship was recognised under Australian law. In this regard they also claimed that should their son remain in Australia while they were removed to Indonesia, would constitute interference with the family unit. They cited in accordance with General Comment No. 16 - Article 17 (The right to respect of privacy, family, home and correspondence, and protection of honour and reputation), that any interference had to be reasonable and in line with the Covenant. They alleged that in order to avoid this interference, their child would have to relocate with them to Indonesia – where he had no connections with the country and where he would be at considerable risk. Alternatively, the authors contended it would be unconscionable and very damaging to break up the family unit and set their child adrift in Australia if he was to be left there while they returned to Indonesia – and that in any case their removal was arbitrary and unreasonable. The authors reached this conclusion by referring to the jurisprudence of the European Court of Human Rights (ECtHR), which in its interpretation of the analogous Article 8 of the European Convention had been generally restrictive towards those seeking entry into a State for purposes of “family creation”, while adopting a more liberal approach to existing families already present in a state.

As to the violation of their rights under Articles 23 and 24 (rights of the child), the authors did not develop any specific argumentation other than to observe that Article 23 was expressed in stronger terms than Article 12 of the European Convention, and that Article 24 of the Covenant specifically addresses the protection of the rights of the child as such or as a member of a family.

The State party argued that the authors’ submissions were inadmissible because they had not exhausted domestic remedies, were incompatible with the provisions of the Covenant, and were in part insufficiently substantiated. With regard to the non-exhaustion of remedies, the State party submitted three remedies remained available and effective – judicial review in the Federal Court and appeal thereafter, constitutional remedy for judicial review, and awaiting the granting of a parent visa during which time the author’s child could live with them in Indonesia or continue his schooling in Australia. As to the incompatibly of the authors’ arguments with the Covenant, the State party argued that the Covenant recognized, in Article 12 paragraph 1 (freedom of movement) and Article 13 (treatment of aliens), the right of State parties to regulate the entry of aliens into their territories. If the authors were removed from Australia it would have been due to the fact that they had illegally remained in Australia after the expiry of their visas. According to the State party, the Covenant did not guarantee the authors the right to remain in Australia or to establish a family there after residing in Australia unlawfully and knowingly. As to the lack of substantiation of the authors’ claims, the State party contended that the authors simply alleged without giving sufficient details. The State party stated that both the nature of these particular allegations and the way in which the evidence provided related to them was unclear and that the evidence submitted was only in relation to Article 17.

Additionally, the State party submitted that the interference with the family unit would not be unreasonable or arbitrary. It acknowledged that the child’s education would be disrupted but that this would not amount to interference with the family. The State party observed that the author’s son had no relatives in Australia other than his parents, whereas there were a significant number of close relatives in Indonesia, with whom the authors stayed in contact and who would, if anything, enhanced the child’s family life. The State party submitted therefore that, like the European Convention, the Covenant should be construed not to guarantee family life in a particular country, but simply to effective family life, wherever that may be. Alternatively, the State party argued that the child could remain in Australia and that the authors would nonetheless continue to be in contact with him – much like a boarding school that did not however interfere with family life.

The State party finally submitted that even if the removal of the authors qualified as interference, it was nonetheless not arbitrary since there existed a legitimate purpose for the removal of the authors, who had overstayed their tourist visa for some ten years. Additionally, the State party also submitted that when the child was born, the authors knew fully that it was a risk to remain and raise the child in Australia. The State party referred to the Committee’s jurisprudence where it had found no violation of Article 17 (or Article 23) in deportation cases where the authors had existing families in the receiving State. Furthermore, a factor of particular weight was whether the persons in question had a legitimate expectation to continuing family life in the particular State’s territory. The cases decided before the ECtHR supported such a distinction between cases of families residing in a State lawfully and unlawfully respectively. By way of example, in Boughanemi v. France the Court found the applicants’ deportation compatible with Article 8 where he had been residing in France illegally, even though he had an existing family in France. In the circumstances of Cruz Varas v. Sweden, similarly, the Court found expulsion of illegal immigrants compatible with Article 8. In Bouchelka v. France, where the applicant had returned to France illegally after a deportation and built up a family (including having a daughter), the Court found no violation of Article 8 in his renewed deportation. By contrast, in Berrehab v. The Netherlands, the Court found a violation in the removal of the father of a young child from the country where the child lived and where the father had lawfully resided there for a number of years. Accordingly, the State party argued that the element of unlawful establishment of a family in a State was a factor weighing heavily in favour of that State being able to take action which, if the family had been residing lawfully in the State, might otherwise have been contrary to Article 17.

With regard to Article 23 paragraph 1, the State party argued that in accordance with international law, it had the discretion to determine who could enter and reside in its territory, that the child of the authors could stay in Australia and visit his parents at their discretion, and therefore the exercise of the family was not threatened or harmed. As to Article 24 paragraph 1, the State party referred to a number of legislative measures and programmes designed specifically to protect children and to provide assistance for children at risk. The removal of the authors from Australia was not a measure directed at the child, who as an Australian citizen and was entitled to reside in Australia, regardless of where his parents lived. The authors’ removal would be a consequence of them residing in Australia illegally, rather than a failure to provide adequate measures of protection for children. The State party submitted that when the child was born, the authors were fully aware of the risk that they would have to return to Indonesia one day.

The authors contested the claims by State party of inadmissibility of the communication. They claimed that non-exhaustion of remedies meant that a particular complaint ought to have been presented to a particular organ of State before being presented to the Committee. Additionally, they claimed several reasons why a parent visa was not suitable as it took a tremendous amount of time and only if successful. As to the State party’s submissions that the authors’ allegations were incompatible with the provisions of the Covenant, in particular Articles 12 paragraph 1 and 13, the authors referred to the Committee’s General Comment No. 15 - The position of aliens under the Covenant, that while the Covenant did not recognise a right of aliens to enter or reside in a State party’s territory, an alien could enjoy the protection of the Covenant even in relation to entry or residence where, inter alia, issues of respect for family life arose. The authors also rejected the State party’s submission that they had not substantiated their claims in respect of Articles 23 and 24 of the Covenant – arguing that a breach of Article 7 meant equally a breach of those Articles too.

None

None

None

None

Consideration of admissibility

The Committee found that all pleadings were admissible and moved on to the merits.

Consideration of the merits

The Committee was of the view that the removal by the State party of the authors would, if implemented, entail a violation of Articles 17 (protection against arbitrary or unlawful interference with family), 23 paragraph 1 (protection of family) and 24 paragraph 1 (protection of child) of the Covenant.

In relation to the claimed violation of Article 17, the Committee found that the removal of the parents to Indonesia, if implemented, would violate Article 17 paragraph 1 in conjunction with Article 23 in respect of all the authors and their child, and additionally a violation of Article 24 paragraph 1 of the child. In making this finding, the Committee first and foremost considered that the choice of having the child either leave to go to Indonesia with his parents, or stay alone in Australia, amounted to interference. Further, it considered that simply removing the parents to Indonesia for purposes of enforcing its immigration policies (without any additionally factors for removing them) was not an adequate reason, and was therefore an arbitrary interference with the family unit. The Committee considered the fact that both authors had been in Australia for over fourteen years; that the authors’ son had grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that. It considered further that in view of this duration of time, it was incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness. In relation to the violation of Article 24 paragraph 1, the Committee considered such a violation based on the fact that there had been a failure to provide the necessary measures of protection to a minor.

The State party was ordered not to remove the authors to Indonesia until they had an opportunity for their parent visas to be examined with due consideration given to the protection of the child.

The dissenting view of four Committee members found that under Article 24, the authors had not substantiated their claims and were therefore inadmissible. It also found that the claimed violation of Article 17 was not the case, since it had not considered the interference arbitrary.