Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, AUSTRALIA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.25-07495 (E) 201025 201025
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 3665/2019*, **, ***
Communication submitted by:
Huyen Thu Thi Tran (represented by counsel,
Alison Battisson of Human Rights for All)
Alleged victims:
The author and her daughter, I.L.P.L.
State Party:
Australia
Date of communication:
14 November 2019 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 15 November 2019 (not issued
in document form)
Date of adoption of Views:
25 March 2025
Subject matter:
Removal to Viet Nam
Procedural issue:
Admissibility – lack of substantiation
Substantive issues:
Freedom from torture or cruel, inhuman or
degrading treatment or punishment; arbitrary
detention; interference with family life; lack of
protection of a minor; non-discrimination
Articles of the Covenant:
7, 9, 17, 23, 24 and 26
Articles of the Optional Protocol:
2 and 5 (2)
1.1
The author of the communication is Huyen Thu Thi Tran, a national of Viet Nam,
born on 10 April 1989. She submits the communication on her own behalf and on behalf of
her daughter, I.L.P.L. stateless, born on 15 March 2018 in Australia. The author raises claims
under articles 7, 9, 17, 23, 24 and 26 of the Covenant. The Optional Protocol entered into
force for the State Party on 25 December 1991. The author and her daughter are represented
by counsel.
* Adopted by the Committee at its 143rd session (3–28 March 2025).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Mahjoub El Haiba, Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia
Leinarte, Bacre Waly Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh
Changrok, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
*** An individual opinion by Committee member Hernán Quezada Cabrera (concurring) and joint
opinion by Committee members Bacre Waly Ndiaye and Hélène Tigroudja (concurring) are annexed
to the present Views.
United Nations
CCPR/C/143/D/3665/2019
International Covenant on
Civil and Political Rights
Distr.: General
20 October 2025
Original: English
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1.2
On 15 November 2019, pursuant to rule 94 of its rules of procedure, the Committee,
acting through its Special Rapporteurs on new communications and interim measures,
requested the State Party not to deport the author to her country of origin while her
communication was being considered. The Committee also requested the State Party to take
all measures necessary to prevent physical or psychological irreparable harm to the author
and her daughter, given the latter’s needs as a child.
1.3
On 13 March 2020, the State Party requested that the Committee lift the request for
interim measures.1 On 16 March 2020, the Committee, acting through its Special Rapporteurs
on new communications and interim measures, decided to lift the interim measures request
and to ask the State Party to grant the author the time and assistance necessary to apply for
travel documents for her daughter, so that the author could take her daughter in the event that
she was removed to Viet Nam. On 31 March 2020, the State Party confirmed that the author
had been granted the opportunity and assistance to apply for the necessary travel documents
for her daughter.2
Facts as submitted by the author
2.1
On 19 March 2011, the author arrived in Australia, on Christmas Island, by boat,
without a valid visa and requested asylum. She was detained upon arrival pursuant to the
Migration Act 1958. On 13 July 2011, the author applied for her protection claims to be
assessed, which was done in 2011 and 2012, but all her claims were rejected.
2.2
On 15 August 2012, the Minister for Immigration and Citizenship (Department of
Home Affairs) approved the author’s placement in community detention, requiring her to
stay at a particular address. She commenced the residential placement in September 2012.
On 19 June 2014, the author absconded, for fear of deportation, and lived unlawfully in the
community in the State Party until 9 November 2017. During this period, the author married
a national of Mauritius, who was legally residing in Australia on a temporary working visa,
and became pregnant. On 13 April 2015, the Minister revoked the author’s residence
determination under section 197AD of the Migration Act.
2.3
On 9 November 2017, the author was found and again detained in closed immigration
detention. The author was detained under the Migration Act, which provides that unlawful
non-citizens must be detained until they are removed or granted a visa. As an “unauthorized
maritime arrival”, the author was excluded from refugee status determination with full review
rights (Migration Act, sects. 46A and 494AA). Following her detention, the author applied
for a safe haven enterprise visa and, on 14 November 2017, the application was found to be
invalid. On 24 January 2018, the author submitted a ministerial request under section 46A of
the Migration Act to allow her to apply for a protection visa. On 25 January 2018, the author
was notified that her ministerial request had been rejected.
2.4
On 27 January 2018, seven months into her pregnancy, the Department of Home
Affairs provided the author with a removal notice for 29 January 2018. The following day,
she applied for judicial review by the Federal Circuit Court of an International Treaties
Obligations Assessment decision. She also unsuccessfully requested a provisional deferral of
her removal. Despite a medical opinion stating that her pregnancy-related diabetes and
psychiatric condition rendered her unfit for travel, the Department attempted to remove her
to Viet Nam on 28 January 2018. She was removed from the plane before take-off and
returned to detention.
2.5
On 9 March 2018, the author signed a form consenting for her unborn child to be held
in immigration detention with her once she had given birth. On 15 March 2018, the author’s
daughter was born and the child was placed in detention with her. Under section 78 of the
Migration Act, the author’s daughter holds the same visa as her father (subclass 457) and has
1 The State Party has submitted that the author’s daughter is in immigration detention as a “guest” with
the formal consent of the author. Her daughter may lawfully reside in the community with her father
by virtue of his status as holder of a temporary working visa. The State Party has confirmed that it
intended to remove the author to Viet Nam on 3 April 2020.
2 On 26 August 2020, the author was released as she had been granted a bridging visa and currently
resides lawfully in the community with her husband and their daughter.
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the right to remain in Australia with her father. The author submits that, immediately after
the birth of her daughter, she had to decide, on the basis of the previously signed consent
form, whether to be separated from her baby, who was entitled to stay with her father, or
whether to agree for her daughter to be held in detention with her despite there being no
indication of a possible release. It would have been practically impossible for the child to
reside with her father at that time, since the author was breastfeeding her daughter.3 The
author claims that her husband would be required to stop working in order to take care of
their daughter, which would lead to breach of his visa conditions, and the eventual
requirement for him to leave Australia. Although the author’s daughter is not officially
detained under the Act, she is in fact being subjected to open-ended administrative detention.
2.6
On 26 March 2018, the author and her daughter were transferred to Broadmeadows
Residential Precinct (part of the Melbourne Immigration Transit Accommodation), defined
as an “alternative place of detention”, in accordance with the Migration Act. Later in 2018,
the author was notified that she did not meet the criteria for referral to the Minister for
Immigration and Citizenship under section 195A to be considered for a visa, despite having
made a request to the Minister. The author submits that she has exhausted all available
domestic remedies to secure her release to the community.
2.7
The author further submitted that her health has deteriorated since being returned to
detention on 9 November 2017. She has been diagnosed with severe depression and has not
received appropriate postnatal care and advice or adequate nutrition for breastfeeding. The
author’s daughter exhibited signs of attachment-related anxiety and risks developmental
problems due to her mother’s depression and prolonged detention. The unavailability of
positive emotional interactions was also likely to affect the development of the author’s
daughter.4
2.8
The author received a notice on 4 November 2019 that the Australian authorities
intend to remove her to Viet Nam as of 25 November 2019. Since the notice did not concern
the author’s daughter, who was 18 months old at the time, the author expected to be removed
without her daughter.5
2.9
The author presented the factual background of the case and several of her claims by
referring to opinion No. 2/2019 of the Working Group on Arbitrary Detention on her case,
adopted on 24 April 2019.
Complaint
3.1
The author submits that her removal from Australia without her daughter will result
in their separation and amount to a violation of the rights of the author and her daughter under
articles 7, 17, 23, 24 and 26 of the Covenant. The author also claims that the State Party has
violated its obligations under article 9 of the Covenant, as it arbitrarily detained the author
and her daughter in an immigration facility. The cause of the alleged breaches are the
discriminatory laws and policies of the State Party.
3.2
The removal notice issued to the author on 4 November 2019 states that “there will
likely be restrictions” on her eligibility to be granted a visa to Australia in the future. It is
highly unlikely that she will ever meet the requirements for another visa to see her daughter.
As she arrived by boat, she will not meet visa requirements of being “of good character”.6
She is unable to apply for a partner visa or any other visa without personal ministerial
permission to do so. If the author’s husband could not take care of their daughter, as he is on
3 The author has also referred to limitations on visiting rights.
4 For the allegations contained in the present paragraph, the author relies on opinion No. 2/2019 of the
Working Group on Arbitrary Detention of 24 April 2019 in her case. The opinion of the Working
Group was attached to the initial communication. No further supporting documentation has been
provided.
5 The author submits that: her daughter is not included in the removal notice; she is not a citizen of Viet
Nam; she has no travel documents; and the representatives of the Department of Home Affairs did not
mention that the author’s daughter would be accompanying her mother when clarification was
requested by her counsel. The author’s counsel adds that, in another case, the person received a
removal notice that did include the minor children.
6 Section 501 of the Migration Act.
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a working visa, she might have to be placed in foster care. The author considers that she has
been targeted by the State Party’s deterrent policy directed at people arriving by boat to seek
asylum.
3.3
The author claims that, if she is removed, her daughter will face a prolonged period
of separation from her mother, which might impact her childhood development. Such
separation would amount to torture or other cruel, inhuman or degrading treatment or
punishment, in violation of article 7 of the Covenant, owing to the extreme and irreparable
harm that the author and her daughter would face as a direct result of the actions of the State
Party’s authorities.7 The author asserts that the State Party would knowingly and deliberately
separate an 18-month-old child from her biological primary caregiver, disregarding the
vulnerability of such a young minor and her best interests. The State Party has not taken any
measures to prevent family separation.
3.4
The author also claims violations of the rights of her and her daughter under articles 9,
24 and 26 of the Covenant owing to their continued arbitrary detention in an immigration
facility and the risk of separation of the author from her daughter through removal. The author
refers to the opinion of the Working Group on Arbitrary Detention of 24 April 2019 on her
case, in which the Working Group concluded that the detention of the author contravened
articles 2, 9, 16 and 26 of the Covenant and that the detention of her daughter contravened
article 9 of the Covenant.
3.5
As regards article 24, the author submits that her daughter would be deprived of
protection of her childhood development and well-being by her family and the State. As the
daughter was approximately 18 months old, she was in a very vulnerable position. The
psychological trauma caused by separation from the author would likely have a long-term
negative impact on her.
3.6
As regards article 26 of the Covenant, the author submits that her daughter is being
discriminated against due to her statelessness and visa status, which precludes her from
sponsoring her mother for a visa, despite being born in Australia, and due to the unlawful
status of her mother. The author adds that she herself has also been discriminated against
because she could not apply for a partner visa without the permission of the Minister and
could not challenge the legality of the continued administrative detention.
3.7
The author further claims that the expected long-term separation of a mother from her
child would amount to a violation of their rights under article 17, owing to arbitrary or
unlawful interference with privacy and family, and article 23 of the Covenant, on account of
the failure to protect the family.
Further information from the author
4.1
On 28 November 2019, the author updated the Committee on her medical status. She
provided two medical reports by the attending psychologist, attesting to, inter alia, the loss
of weight of the author and her daughter, inadequate paediatric care and vaccination of the
author’s daughter, and the lack of appropriate medical attention given to the author in the
Melbourne Immigration Transit Accommodation. The reports also referred to additional risks
posed by the author’s refusal to take medication since she received a removal notice and
asthma symptoms, requesting urgent psychological and medical treatment outside of the
Melbourne Immigration Transit Accommodation in a specialized medical facility.
4.2
On 10 March 2020, another notice of removal on or after 3 April 2020 was issued.
Again, the notice did not mention her daughter, who remained with her in detention at the
time, as being subject to removal together with her.
7 To support the claims under article 7, the author refers to a 22 June 2018 statement issued by a
number of special rapporteurs and other experts of the Office of the United Nations High
Commissioner for Human Rights: “UN experts to US: ‘Release migration children from detention and
stop using them to deter irregular migration’”, press release, 22 June 2018. Available at
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23245&LangID=E.
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4.3
On 12 March 2020, the author sent a letter to the State Party’s Department of Home
Affairs, referring to opinion No. 2/2019 of the Working Group on Arbitrary Detention and
seeking an update on the outcomes of the State Party’s investigation.
State Party’s observations on admissibility and the merits
5.1
On 15 October 2020, the State Party submitted its observations, arguing that the
author’s allegations were not sufficiently substantiated and should be considered
inadmissible or without merit.
5.2
Domestic authorities found that the author did not engage the protection obligations
of Australia, there was no legal basis for her to remain in Australia and, hence, she was
subject to removal. On 26 August 2020, the author was granted a bridging visa and since that
date resides lawfully with her husband and her daughter. This represents a material change
from the time of the submission of the initial communication.
5.3
While noting the conclusions of the Working Group on Arbitrary Detention, the State
Party did not agree with its findings.
5.4
The State Party submits that it advised the author to select one of the following options
on her removal from Australia: first, the author would take her daughter with her to Viet Nam,
which would require the author to register her daughter for Vietnamese citizenship and obtain
travel documents. Second, the author would let her daughter remain with her father and his
family in Australia. After her removal to Viet Nam, the author could apply for a visa to return
to Australia on a lawful basis. In the meantime, the author’s daughter and the author’s
husband, as holders of visas (subclass 457), could travel between Viet Nam and Australia
while the author’s application was assessed. Third, the author, her daughter and her husband
could explore the possibility of living together in Mauritius or Viet Nam. Of the three options,
only the second would result in a temporary separation of the author from her daughter, as
the author could apply for a visa to lawfully return to Australia to reunite with her family.
5.5
The author has had her claims of separation due to removal considered in domestic
processes. She made two requests, on 30 April and 24 October 2018, for ministerial
intervention under section 195A of the Migration Act. The authorities found that the family
could pursue migration options to reunify the family. The author’s claims were assessed as
not meeting the guidelines of the Migration Act on 17 July 2018 and 26 July 2019,
respectively. Her case was not referred to the Minister. The State Party also describes the
consideration at the domestic level of the author’s protection claims, between August 2011
and July 2019, including a protection obligations evaluation.
5.6
The author has not substantiated her claims under article 7 of the Covenant that
Australia has subjected her and her daughter to torture or cruel, inhuman or degrading
treatment or punishment resulting from their eventual separation. The facts demonstrate that
separation is not a necessary consequence of removal, as the author continues to have options
to remain with her daughter following removal. Even if the author decided to separate from
her daughter, it would not represent irreparable harm, as it would not amount to pain or
suffering that would meet the high threshold of article 7. The author’s daughter can remain
with her father in Australia and benefit from the support of her father’s family and the option
to visit her mother in Viet Nam.
5.7
The State Party objects to the claims of violations under articles 9, 24 and 26 being
combined into a single allegation, arguing that the violations of the articles referred to were
addressed in the opinion of the Working Group and noting the absence of further explanation
or substantiation of the author’s claims. The author has not substantiated that the State Party
subjected her and her daughter to arbitrary detention. The author was detained under the
Migration Act as an unlawful non-citizen who was found not to engage the protection
obligations of Australia. The author’s subsequent immigration detention was also based on
her history of absconding from community detention pursuant to residence determination
(section 197AB of the Migration Act). The author was released on 26 August 2020 and holds
a bridging visa allowing her to reside lawfully in the community pending her removal. The
author’s detention was reasonable, necessary and proportionate in pursuit of the legitimate
aim of border protection and migration management.
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5.8
The State Party submits that the claims under article 9 are inadmissible, as the author’s
daughter was never detained pursuant to the Migration Act. She resided in immigration
detention at the request and with the consent of her mother and also spent time in the
community with her father. The author’s daughter holds a valid visa, her parents could
modify the arrangements and she could reside with her father. Moreover, the facts stated in
the opinion of the Working Group on Arbitrary Detention are no longer accurate as the author
was released from detention.
5.9
The State Party rejects the author’s claim that its obligations under articles 17 and 23
have been violated by a threat to separate the mother and her daughter. First, the author has
been briefed extensively and continues to be supported to pursue options that will allow her
daughter to remain with the family. As the family can choose to remain together, separation
is not a necessary consequence of the State Party’s actions. The State Party considers such
claims inadmissible owing to a lack of substantiation.
5.10
The State Party submits that none of the facts, as alleged, constitute a violation of
article 24, as the daughter has received required protections by virtue of her status as a minor.
The author’s daughter can acquire the nationality of Mauritius and Viet Nam and has not
done so owing to the inaction of her parents. In response to the author’s argument that her
daughter is being discriminated against due to her statelessness, the State Party submits that,
while the daughter cannot sponsor her mother for a visa as she depends on her father’s visa,
the author’s husband can sponsor the author.
5.11
The State Party considers the author’s claims under article 26 to be unsubstantiated.
First, article 26 does not create an obligation for States to provide the same rights to citizens
and non-citizens. The capacity of Australia to govern who may enter its territory and the
conditions of such entry is employed for the legitimate purpose of managing its borders and
migration flows and is reasonable, proportionate and objective in the circumstances.
Therefore, it does not amount to discrimination. Second, the author’s claims to be owed
protection obligations were assessed on three separate occasions. The author did not meet the
requirements for referral under ministerial intervention not due to her maritime arrival, but
because she absconded from community detention and remained in the community
unlawfully for over three years.
5.12
On the merits, the State Party addressed the author’s new claims under articles 7, 17,
23 and 24 of the Covenant. On article 7, the State Party reiterates that the author was not
subjected to torture or cruel, inhuman or degrading treatment or punishment resulting from a
risk of separation from her daughter. Her removal will not produce irreparable harm that
would amount to torture or ill-treatment nor intentional infliction of severe pain and
suffering.8 Whether the author will be able to live with her husband and her daughter, if she
is removed, is within their control. The author has not specified what harm is expected to
occur and the sources cited as to the impacts of separation do not substantiate that it would
amount to torture or degrading or debasing treatment.
5.13
As to the merits of the claims under articles 17 and 23, the State Party submits that it
has complied with its obligations to ensure protection of the family. It holds that article 23 (1)
permits legitimate interference and that both articles are generally considered in conjunction,
where arbitrary interference with the right to family life under article 17 has been found to
have occurred. The State Party refutes the author’s claim that the violation is clear from the
threat to separate her from her daughter, repeating that it is a decision within her control. The
author has been briefed and supported to pursue the option that will allow the author’s
daughter to remain with both her parents in Mauritius or Viet Nam, with her father and his
family in Australia or with the author in Viet Nam where the author may pursue migration
pathways to return to Australia. As lawful non-citizens, the daughter and her father can reside
together in Australia and are able to travel between Australia and Viet Nam.
5.14
The State Party considers the claims under article 24 without merit, as the author’s
daughter enjoyed protection due to her status as a minor. The author’s daughter has neither
been discriminated against “due to her statelessness”, the “status of her mother” or because
she “cannot sponsor her mother for a visa”. Article 24 does not require a State to give its
8 Vuolanne v. Finland (CCPR/C/35/D/265/1987), para. 9.2.
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nationality to every child born in its territory9 nor does it require that it give nationality to the
parents of such children. The author has not made specific allegations of a lack of protection
as required by a child’s status as a minor under article 24. The State Party also notes that the
author’s daughter can acquire the nationality of Mauritius or Viet Nam and has not done so
due to inaction by her parents. Furthermore, the State Party argues that the opportunity for a
child to sponsor the visa of a parent is not a “protective measure” required under article 24,
particularly where one of the parents is able to be a sponsor for the other parent.
5.15
Addressing the author’s claims under articles 9 and 26, the State Party attached its
reply of 26 November 2019 to opinion No. 2/2019 of the Working Group on Arbitrary
Detention, objecting to the finding of the Working Group that the prohibition of detention of
children in the context of migration had been circumvented and asserting that the author’s
immigration detention was justifiable and that the author had consented to her child residing
with her despite the availability of alternatives.
Author’s comments on the State Party’s observations
6.1
On 18 February 2021, the author submitted her comments on the State Party’s
observations. The author confirms that, on 26 August 2020, she was granted a bridging visa
and that she resides in the Australian community with her husband and her daughter.
6.2
The author rejects the State Party’s assertions, including that her daughter resided as
a guest of the author in the immigration detention facility, with the author’s consent. As
addressed by the Working Group on Arbitrary Detention in its opinion,10 the author signed
the consent form under duress. As reiterated by the Working Group in its opinion,11 the
author’s signature of the request to allow her child to remain with her as a “guest” was “an
attempt by the authorities to circumvent the prohibition of detention of children in the context
of migration”.
6.3
As to the options of return, in the event of her removal, the author retains her initial
claim for protection from Viet Nam, owing to a risk of persecution based on her Catholic
faith. The author does not wish to expose her daughter to the alleged risks in Viet Nam. She
holds that none of her protection claims have been assessed through appropriate judicial or
administrative remedies. As to the second option of return, separating from her daughter and
her husband in Australia and travelling to Viet Nam alone, the author recalls that, as she
previously absconded from immigration detention, it is unlikely that she will ever meet the
requirements for another visa to Australia to visit her daughter. The author excludes the
option of their return to Mauritius, as applying for citizenship in Mauritius may have adverse
consequences for her daughter’s health and welfare, as her daughter is settling into a normal
childhood in Australia.
6.4
As to article 7, the author recalls that she and her daughter will be subjected to torture
or cruel, inhuman or degrading treatment or punishment if the author were to be removed
from Australia, as a direct result of the actions of the State Party. The State Party has not
explained why it did not accept the allegations of a risk of irreparable harm due to the
separation, as forcible separation from even one parent, particularly the primary caregiver,
can have negative effects on a child’s well-being and mental health. If the author’s daughter
stayed with her father and his family in Australia, she would be separated from her mother
for a protracted period and would not be able to visit and spend time with her mother during
her formative years. In addition, the choice of the author to live with her husband and
daughter if removed is not within their control, as asserted by the State Party, as they are
forced into deciding either to relocate to a different country together or to be separated. In
addition, it is a government policy not to settle boat people, as a deterrent to others. As
explained in the initial communication and as referred to by the State Party, such separation
may lead to severe and long-lasting harm, including by disrupting a child’s neurological
development and causing susceptibility to chronic conditions, such as post-traumatic stress
disorder.
9 Human Rights Committee, general comment No. 17 (1989), para. 8.
10 Paras. 73 and 105.
11 Para. 106.
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6.5
As to article 9, the author adds that the Working Group on Arbitrary Detention in its
opinion found that the State Party has arbitrarily detained the author from 19 March 2011 to
15 August 2012 (from the time of her arrival to her release into community detention), and
from 9 November 2017 to 26 August 2020, in contravention of articles 3, 9, 16 and 26 of the
Covenant; and the author’s daughter from 15 March 2018 to 26 August 2020, in
contravention of article 9 of the Covenant. While the author was released from immigration
detention on 26 August 2020, this does not alter the fact that she and her daughter were
arbitrarily detained during the specified periods.
6.6
As regards alleged violations of the obligations with respect to the family under
articles 17 and 23, the author claims that the State Party has failed to identify as an option
allowing the author to remain in Australia with her family, maintain the status quo and has
instead identified options that constitute interference with the author’s family. In this case,
the person to be deported has been the primary caregiver since the child’s birth and the effects
of the author’s removal on all members of the family would be disproportionate. The cases
to which reference has been made have emphasized the importance of considering the best
interests of the children involved, whose welfare had to be given primary, although not
overwhelming, importance. The author has not committed any offence or criminal act. There
is a clear link between the present case and the decision in Winata, Li and Winata v. Australia.
The family situation in the present case can be considered as “long-settled family life”, and
the author’s removal would constitute its “substantial change”.12 The State Party has failed
to demonstrate additional factors to justify the removal of the author that go beyond a simple
enforcement of its immigration laws. Therefore, the interference in the author and her
family’s life is arbitrary.
6.7
As to article 24, the author admits that the opinion of the Working Group on Arbitrary
Detention does not refer to it explicitly, but rather implicitly. The Working Group referred to
general comments by the Committee on the Rights of the Child, stressing that the right of the
child to have their best interests taken as primary consideration applies in the context of
removals. The allegations of a lack of protection of the author’s daughter have also been
substantiated by the daughter’s feelings of fear, a vulnerable position in terms of childhood
development and the psychological trauma caused by separation from her mother with a
likely long-term negative impact. The author reiterates that her daughter is stateless due to
the threat of deportation to Viet Nam with her mother.
6.8
As to article 26, the author submits that, even if the State Party has followed its
immigration laws, it does not mean that such law is in conformity with its obligations under
international law, namely articles 7, 9, 17, 23 and 24 of the Covenant. Despite the assessment
of the protection obligations of Australia, due consideration has not been given to a risk of
violations of the author’s rights as a result of her removal and separation from the family.
The author adds that the State Party’s deterrent policy directed at people arriving by boat to
seek asylum – a pillar of its immigration strategy, as set out in the Migration Act, referenced
in parliamentary reports, and as manifested in the “Operation Sovereign Borders” – has
discriminatory effects.
State Party’s further observations
7.1
On 23 June 2021, the State Party submitted that the author’s further comments did not
contain any new information to alter the State Party’s original assessments.
7.2
In addition, the State Party recalls that the author’s protection claims have been
comprehensively assessed as part of a statutory process with appropriate judicial or
administrative review at four different instances, including merits assessment and judicial
review by the Federal Circuit Court.
7.3
The State Party maintains that the daughter’s presence in the detention facility was
voluntary and that, with the bridging visa granted and travel arrangements available, any
perceived risk of family separation is mitigated. The State Party further notes that various
12 Winata, Li and Winata v. Australia (CCPR/C/72/D/930/2000), paras. 7.2 and 7.3.
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options exist for maintaining family unity, whether through temporary or permanent
relocation, as previously discussed.
Author’s further comments
8.
On 26 November 2024, the author submitted that she and her daughter were still in
Australia. The author has resided in the community on a temporary visa and has sought a
permission to apply for a permanent visa. Such permission has not been granted to her yet.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
9.2
The Committee notes that the author’s case has been examined by the Working Group
on Arbitrary Detention, which rendered its opinion on 24 April 2019. The Committee recalls
that, under article 5 (2) (a) of the Optional Protocol, it is required to ascertain that the same
matter is not being examined under another procedure of international investigation or
settlement. However, nothing precludes it from considering communications on cases
previously dealt with by another international investigation or settlement body,13 unless the
State Party has made a reservation explicitly prohibiting successive appeals,14 which is not
the case here.15 In the present case, the Working Group completed its examination of the case
before the present communication was considered by the Committee. Therefore, there is no
obstacle to the admissibility of the present communication under that provision.
9.3
The Committee notes that the State Party has not challenged the exhaustion of all
available effective domestic remedies by the author. Given that the author submitted several
applications for assessment of her protection claims and requests for a protection visa, to no
avail, the Committee considers that the author has exhausted available domestic remedies, in
accordance with the requirements of article 5 (2) (b) of the Optional Protocol.
9.4
The Committee notes the author’s claim that enforcing the State Party’s migration
laws and policies by her removal would directly result in the author’s separation from her
daughter, which would constitute a violation of their rights under articles 7, 17, 23, 24 and
26 of the Covenant. The author has further alleged that her detention together with her minor
daughter pending the author’s removal also violated their rights under article 9 of the
Covenant.
9.5
As to article 7 claims, the Committee notes the State Party’s objection that the decision
on the author’s removal is a consequence of her unlawful arrival and stay in Australia; that
the family could choose to stay together; and that, even if the author decided to separate from
her daughter, it would not represent irreparable harm, as not amounting to pain or suffering
that would meet the threshold of article 7. The Committee also notes the State Party’s
information that the author is not currently subject to removal. The Committee considers that
the author’s claims under article 7 have not been sufficiently substantiated and finds such
claims inadmissible, pursuant to article 2 of the Optional Protocol.
9.6
Regarding the claims under article 9, the Committee notes the author’s allegation that
she and her daughter were held in continued immigration detention and notes that their
situation was also addressed by the Working Group on Arbitrary Detention in opinion
No. 2/2019. The Committee observes that the author was released from detention on
26 August 2020, was granted a visa and has been living in the community. Since the author
was detained for extended periods, together with her daughter, at the time of submission of
her initial communication, the Committee considers the author’s claim under article 9
sufficiently substantiated for the purposes of admissibility.
13 L.E.S.K. v. Netherlands (CCPR/C/45/D/381/1989), para. 5.2.
14 Wade v. Senegal (CCPR/C/124/D/2783/2016), para. 11.2.
15 Tsarsi et al. v. Chad (CCPR/C/140/D/3806/2020), para. 6.2.
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9.7
Concerning the claim under article 17, the Committee notes that the author does not
merely claim that she has a right of residence in Australia, but that, by forcing her to leave,
the State Party would arbitrarily interfere with the family life of the author and her daughter.
While noting the State Party’s argument that unlawful residents do not have as such the right
to reside in its territory, the Committee recalls that the State Party is obliged to respect and
ensure all their rights under the Covenant. The claim that the State Party’s actions would
interfere arbitrarily with the author’s family life relates to an alleged violation of a right that
is guaranteed under the Covenant to all individuals under the State Party’s jurisdiction
(art. 2 (1)). The Committee observes that the removal of the author would certainly have an
impact on the family, as acknowledged by the State Party (para. 5.4 above). The author has
therefore sufficiently substantiated her claim under article 17 for the purposes of admissibility.
9.8
The Committee notes that the author’s claims in relation to article 23 of the Covenant
are closely tied to her claims under article 17. The Committee intends to consider the
congruence of the articles referred to, given the intended removal of the author and her
ensuing separation from her daughter and husband, at the merits stage. Accordingly, the
Committee finds the author’s claims under articles 17 and 23 sufficiently substantiated for
the purposes of admissibility.
9.9
As concerns the claims under article 24, the Committee decides to consider them in
conjunction with the claims under article 9, and articles 17 and 23 of the Covenant.
9.10
As to the claims under article 26, the Committee notes the State Party’s arguments
that the author’s assertions refer to the application of the immigration laws, without
demonstrating that the notice of her removal would be unreasonable, unobjective or not
pursuing legitimate aims. The Committee observes that the author has raised the claims under
article 26 only by referring to the opinion of the Working Group on Arbitrary Detention on
her case, without supporting them with additional facts and evidence. The Committee thus
considers that the author has not sufficiently substantiated the claims of discriminatory
treatment of the author and her daughter before the Committee. The Committee therefore
finds the claims under article 26 to be inadmissible, pursuant to article 2 of the Optional
Protocol.
9.11
Accordingly, the Committee finds the author’s claims under articles 9, 17, 23 and 24
of the Covenant admissible as sufficiently substantiated and proceeds with its consideration
of the merits.
Consideration of the merits
10.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
10.2
As regards the claim of a violation of article 9, relating to the immigration detention
of the author (from 19 March 2011 to 15 August 2012 and from 9 November 2017 to
26 August 2020) together with her daughter (since her birth on 15 March 2018 to 26 August
2020), the Committee notes the State Party’s argument that the author is an unlawful
non-citizen, without a title to reside in the territory, who has been awaiting removal. The
Committee will consider the claim of a violation of article 9 separately for the author and her
daughter.
Situation of the author
10.3
The Committee notes the State Party’s argument that the author’s detention was
objective, necessary and proportionate to a legitimate aim, in accordance with the Migration
Act. The Committee recalls its jurisprudence that, although the detention of unauthorized
arrivals is not per se arbitrary, the detention must be justified as reasonable, necessary and
proportionate in the light of the circumstances and reassessed as it extends in time.16 The
notion of arbitrariness is not to be equated with “against the law” but must be interpreted
more broadly to include elements of inappropriateness, injustice and lack of predictability
16 Human Rights Committee, general comment No. 35 (2014), para. 18.
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and due process of law.17 Asylum-seekers who unlawfully enter a State Party’s territory may
be detained for a brief initial period in order to document their entry, record their claims and
determine their identity if it is in doubt.18 To detain them further while their claims are being
resolved would be arbitrary in the absence of particular reasons specific to the individual,
such as an individualized likelihood of absconding, a danger of crimes against others or a
risk of acts against national security.19 The decision must consider relevant factors case by
case and not be based on a mandatory rule for a broad category; must take into account less
invasive means of achieving the same ends, such as reporting obligations, sureties or other
conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial
review.20 Decisions regarding the detention of migrants must also take into account the effect
of the detention on their physical or mental health. 21 The Committee observes that the
detention of refugees for lengthy and indefinite periods can be arbitrary.22
10.4 The Committee notes the reasons behind the State Party’s decision to detain the author,
in particular as she was an unlawful non-citizen, who has been awaiting removal, and as she
absconded in the past. The author was detained in immigration detention as of 9 November
2017 for two years and nine months, in part together with her daughter, until their release on
26 August 2020. Although the author’s initial detention in 2011 and 2012 may have been
justified by identification and processing needs, and the detention in 2017 by her absconding
in June 2014, the State Party has not, in the Committee’s view, demonstrated that the
detention of the author was justified for such an extended period, including as the risk of
absconding was low following the birth of her daughter. The Committee further notes that
the author and her daughter were transferred to Broadmeadows Residential Precinct, as an
alternative place of detention, on 26 March 2018 (para. 2.6 above). The Committee considers
that the State Party has not demonstrated that other, less intrusive measures could not have
achieved the same end of compliance with the State Party’s immigration policies by, for
example, imposing reporting obligations, sureties or other conditions that would take into
account the family’s circumstances.23 Therefore, the Committee finds that the State Party’s
decision to detain the author for protracted periods, without appropriate justification, was
arbitrary and unlawful within the meaning of article 9 (1) and (4) of the Covenant.
Situation of the author’s daughter
10.5
As regards article 9 claims relating to the author’s daughter, the Committee notes that
the author signed a request to allow her daughter to stay with her as a “guest” and that her
daughter lived with the author in the same detention facility after her birth. Since her daughter
was detained because of the migratory status of her mother, the author argues that the
daughter’s detention was arbitrary and a consequence of the author’s exercise of her right to
seek asylum. The Committee notes the State Party’s objection that the author’s daughter is
not detained and is in fact free to leave and live with her father and that her parents can
withdraw the “request to stay as a guest” at any time. The Committee considers that the
situation of the author’s daughter qualifies as de facto detention, as the author had little choice
if she was to look after her baby, whom she was breastfeeding. In this regard, the Committee
recalls that children should not be detained due to the migratory status of their parents.24 In
addition, the Committee considers that the author signed the request to allow her child to
remain with her as a “guest” in detention under coercive circumstances. Furthermore, the
Committee observes that the stay of the author’s daughter in detention was never authorized
by any judicial authority in Australia, nor has the detention of the author’s daughter ever been
17 A v. Australia (CCPR/C/59/D/560/1993), paras. 9.3 and 9.4; Madafferi et al. v. Australia
(CCPR/C/81/D/1011/2001), para. 9.2; and general comment No. 35 (2014), para. 12.
18 Bakhtiyari et al. v. Australia (CCPR/C/79/D/1069/2002), paras. 9.2 and 9.3.
19 Tarlue v. Canada (CCPR/C/95/D/1551/2007), paras. 3.3 and 7.6; and Ahani v. Canada
(CCPR/C/80/D/1051/2002), para. 10.2.
20 A.K. et al. v. Australia (CCPR/C/132/D/2365/2014), para. 8.4; and M.I. et al. v. Australia
(CCPR/C/142/D/2749/2016), para. 10.3.
21 General comment No. 35 (2014), para. 18.
22 Bakhtiyari et al. v. Australia, para. 9.3.
23 See also Working Group on Arbitrary Detention, opinion No. 2/2019, paras. 93, 95, 96 and 119 (a).
24 See Ali et al. v. Norway (CCPR/C/135/D/2926/2017), para. 10.7.
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reviewed by a judicial body, as required by article 9 (4) of the Covenant.25 The Committee
therefore finds that the detention of the author’s daughter after her birth was arbitrary,
disproportionate and unlawful, in violation of article 9 (1) and (4) of the Covenant.26
10.6
The Committee also emphasizes that article 24 of the Covenant mandates that the best
interests of the child must be a primary consideration and that the State Party has an
obligation to afford children special measures of protection.27 In that context, the Committee
considers that, by detaining the author’s daughter in immigration facility because of the
migratory status of her mother, the State Party did not duly take her best interests into account
as a primary consideration.28 In the light of the above, the Committee concludes that the State
Party violated article 24 (1), in conjunction with article 9 (1) and (4) of the Covenant.
Situation of the author and her daughter
10.7
As to the alleged violation of rights of the author and her daughter under article 17,
read in conjunction with article 23, the Committee notes that the author fears being removed
from Australia without her daughter, since the removal notice issued to the author states that
“there will likely be restrictions” on her eligibility to be granted a visa to Australia in the
future. The author argues that it is unlikely that she will ever meet the requirements for a visa
to Australia to see her daughter. The Committee also notes the State Party’s argument that
there is no “interference”, as the decision of whether the author and her family will remain
together is an issue for the family and is not forced by the State’s actions. The Committee
notes that there may indeed be cases in which a State Party’s refusal to allow one member of
a family to remain in its territory would involve interference in that person’s family life.
However, the mere fact that one member of a family is entitled to remain in the territory of a
State Party does not necessarily mean that requiring other members of the family to leave
involves such interference.29
10.8
In the present case, the Committee considers that a decision of the State Party to deport
the author, the primary caregiver for her young daughter, and to compel the family to choose
whether the daughter, who was born in Australia but is stateless, remains with her father in
the State Party or accompanies her mother to Mauritius or Viet Nam constitutes “interference”
with the family. In the circumstances of the present case, the Committee considers that
substantial changes to family life would follow in either case, 30 given the emotional
dependence of the daughter on both parents at such a young age, and possible severe
consequences due to separation from one of the parents. The Committee has to determine
whether such interference in the family life of the author and her daughter is arbitrary or
unlawful.
10.9
It is established under international law, including the Covenant, that a State Party
may regulate immigration into its territory and require, under its laws, the departure of
persons who are considered unlawful non-citizens. Nor is the fact that a child is born, or that
by operation of law such a child receives citizenship either at birth or at a later point,
sufficient of itself to make a proposed deportation of one or both parents arbitrary.31
10.10 Accordingly, there is significant scope for States parties to enforce their immigration
policy and to require departure of unlawfully present persons. That discretion is, however,
25 Joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families/No. 22 of the Committee on the Rights of the Child (2017)
on the general principles regarding the human rights of children in the context of international
migration; and Committee on the Rights of the Child, general comment No. 14 (2013) on the right of
the child to have his or her best interests taken as a primary consideration, paras. 37 and 38.
26 See also Working Group on Arbitrary Detention, opinion No. 2/2019, paras. 110, 111 and 119 (b).
27 Human Rights Committee, general comment No. 17 (1989), paras. 1 and 2. See also Maalem et al. v.
Uzbekistan (CCPR/C/123/D/2371/2014), para. 11.8.
28 See, e.g., Ali et al. v. Norway, paras. 10.7, 10.9 and 11; and joint general comment No. 3/No. 22
(2017), paras. 5, 9 and 10.
29 B.D.K. et al. v. Canada (CCPR/C/125/D/3041/2017), para. 7.6. See also Winata, Li and Winata v.
Australia, para. 7.1; Madafferi et al. v. Australia, para. 9.7; and Byahuranga v. Denmark
(CCPR/C/82/D/1222/2003), para. 11.5.
30 Winata, Li and Winata v. Australia, para. 7.2; and Madafferi et al. v. Australia, para. 9.7.
31 Winata, Li and Winata v. Australia, para. 7.3.
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not unlimited and may occasionally be exercised arbitrarily in certain circumstances. The
Committee recalls that “arbitrary interference” can also extend to interference provided for
under the law. The concept of arbitrariness is intended to guarantee that even interference
provided for by law should be in accordance with the provisions, aims and objectives of the
Covenant and should, in any event, be reasonable in the particular circumstances. 32 The
Committee also recalls that, in cases where one member of a family must leave the territory
of the State Party while the other member or members would be entitled to remain, the
relevant criteria for assessing whether or not the specific interference in family life can be
objectively justified must be considered in the light, on the one hand, of the significance of
the State Party’s reasons for the removal of the person concerned and, on the other hand, of
the degree of hardship the family and its members (the author’s daughter in this case) would
encounter as a consequence of such removal.33
10.11 In the present case, Committee observes that the author’s intended removal pursued
the State Party’s stated objective to enforce its immigration law. It also observes that the
author has been in Australia for over 13 years, while the author’s husband, as the father of
the child, has been a lawful non-citizen on a working visa gaining income for the family. The
author’s daughter has grown up in Australia from her birth over seven years ago, attending
school as an ordinary child and developing the social relationships inherent in that. In view
of the time spent in the State Party, the fact that the family lived only in Australia since their
daughter’s birth and the legal status of the daughter and her father, it is incumbent on the
State Party to demonstrate additional factors justifying the removal of her mother that go
beyond a mere enforcement of its immigration laws to avoid arbitrariness. The Committee
observes that the State Party has not properly assessed the impact of disrupting the parental
relationship between the author and her daughter. Accordingly, the Committee considers that
the State Party has failed to demonstrate additional factors that justify the removal of the
author that go beyond a mere enforcement of its immigration laws, in the light of the author’s
family ties and the best interests of the child, and that the State Party has not properly assessed
the risks to the child’s well-being and mental stability during her formative period in case of
separation. 34 In the present circumstances, therefore, the Committee considers that the
removal by the State Party of the author would constitute, if implemented, arbitrary
interference with the family, contrary to article 17 (1), in conjunction with articles 23 (1) and
24 of the Covenant.35
11.
The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is
of the view that the State Party has violated article 9 (1) and (4), read alone and in conjunction
with article 24 (1), and that article 17 (1), in conjunction with articles 23 (1) and 24 of the
Covenant would be violated, if the State Party decides to remove the author from Australia.
12.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to
provide the author with an effective remedy, including by: (a) providing her and her daughter
with compensation for the violations of their rights; and (b) refraining from removing the
author from Australia while her application for a permanent visa is being examined, giving
due consideration to the best interests of the author’s daughter. The State Party is also under
an obligation to take all steps necessary to prevent similar violations from occurring in the
future.
13.
Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective remedy when it has been
determined that a violation has occurred, the Committee wishes to receive from the State
Party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State Party is also requested to publish the present Views and to
have them widely disseminated in the language of the State Party.
32 Human Rights Committee, general comment No. 16 (1988), para. 4.
33 Madafferi et al. v. Australia, para. 9.8.
34 General comment No. 17 (1989), para. 8.
35 Madafferi et al. v. Australia, para. 10.
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Annex I
[Original: Spanish]
Individual opinion of Committee member Hernán Quezada Cabrera
(concurring)
1.
I fully endorse the Committee's general finding that the State Party has violated
article 9 (1) and (4) of the Covenant, read alone and in conjunction with article 24 (1), and
that article 17, in conjunction with article 23 (1) and 24 of the Covenant, would be violated
if the State Party decided to remove the author from Australia (see Views, para. 11). However,
referring specifically to the author's daughter, I believe that the finding of a violation of
article 9 (1) and (4) of the Covenant is appropriate only if those provisions are read in
conjunction with article 24 (1) of the Covenant, and not if read alone.
2.
In that regard, I do not fully agree with the conclusions of paragraph 10.5 of the Views
for the reasons that follow. Of course, the “de facto detention” of the author's daughter is a
special situation, since it cannot be explained on its own, but rather is necessarily connected
to the mother's detention.
3.
According to the evidence, the author's daughter remained in a detention centre from
15 March 2018, the day of her birth, to 26 August 2020, the date of the author's release. The
minor's situation was a consequence of the author's detention, which was related to the latter’s
immigration status. The author states that, on 9 March 2018, she signed a form giving her
consent for her unborn daughter to be held with her, from the day of her birth, in an
immigration detention centre. The author further submits that, immediately after the birth of
her daughter, who has the right to remain in Australia with her father, she had to decide, on
the basis of the previously signed consent form, whether to be separated from her child and
allow her to live with her father or to have her daughter remain with her in detention despite
there being no indication that she would be released. In addition, the author states that it
would have been virtually impossible for the child to be sent to reside with her father at that
time, because the author was breastfeeding her and, moreover, the father would have been
forced to stop working to care for his daughter, which would have resulted in a breach of his
visa conditions and a possible order to leave Australia.
4.
While I fully agree with the finding in paragraph 10.4 of the Views that the State
Party's decision to detain the author for protracted periods, without appropriate justification,
was arbitrary and unlawful within the meaning of article 9 (1) and (4) of the Covenant, it
does not seem to me that the same conclusion can simply be applied to the minor's situation.
5.
As stated in the Committee’s general comment No. 35 (2014) (para. 18 children
should not be deprived of liberty, except as a measure of last resort and for the shortest
appropriate period of time, taking into account their best interests as a primary consideration
with regard to the duration and conditions of detention; this has been reiterated in the
Committee's jurisprudence,1 and is consistent with article 37 of the Convention on the Rights
of the Child. On an exceptional basis, the Committee acknowledges that sometimes a
particular deprivation of liberty would itself be in the best interests of the child.2 Thus, the
determining criterion, in the case of minors who suffer some form of deprivation of liberty,
will always be the best interests of the child.
6.
In the present case, the detention of the minor for more than two years, on account of
her mother's detention, can be considered as a deprivation of liberty that was not a measure
of last resort and did not take into consideration the criterion that such a measure should be
as short as possible. The State Party could have satisfied this criterion simply by releasing
the author as soon as possible after the birth of the child. Since the State Party granted a
temporary visa to the author and she was released on 26 August 2020, it is not clear why such
1 Ali and others v. Norway (CCPR/C/135/D/2926/2017), para. 10.3.
2 Human Rights Committee, general comment No. 35 (2014), para. 62.
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a decision could not have been taken in the first weeks or even in the first days of the child's
life.
7.
All of the above supports the conclusion that the deprivation of liberty of the author's
daughter during the period indicated, which clearly affected her best interests and during
which the State Party failed to adopt special measures of protection, clearly constitutes a
violation of article 24 of the Covenant.
8.
Consequently, I consider that a violation of article 9 (1) and (4) of the Covenant cannot
be found if those provisions are read in isolation, but only if they are read in conjunction with
article 24 (1) of the Covenant.
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Annex II
Joint opinion by Committee members Bacre Waly Ndiaye and Hélène
Tigroudja (concurring)
1.
We agree with the substance of the Committee’s decision and its overall conclusion.
However, considering the extremely precarious situation migrants and asylum seekers
arriving by boat face in Australia, we would like to share our views on some of the factual
and legal questions raised by the present case, which is far from isolated.
2.
First, regarding the discriminatory nature of the treatment inflicted on people arriving
in Australia by boat, it is regrettable that neither the Working Group on Arbitrary Detention
in its opinion dealing with the situation of the author and her daughter1 nor the author herself
before the Committee elaborated more on the violation of article 26 of the Covenant (equality
before the law). In her complaint before the Working Group (para. 30), it was clearly claimed
that:
Ms. Tran has also been discriminated against, in contravention of article 26 of the
International Covenant on Civil and Political Rights. As a person arriving by boat to
seek asylum in Australia, she has not been granted the same legal rights and avenues
of review as an asylum seeker who arrived by other means.
3.
However, in its Opinion, the Working Group only referred to general comment
No. 15 (1986) of the Committee and then focused its analysis on the detention of non-citizens,
but without dwelling on the discrimination by the Australian migration policy and legal
framework in the treatment of migrants and asylum seekers arriving by boat themselves. As
indicated in the current Views (para. 9.10), in her complaint to the Committee, the author did
not provide more arguments than referring to the Working Group’s opinion. Therefore, the
Committee could not but reject her claim. And yet, various reports on Australian policy
applied at least from 2014 could have been used to ground the discriminatory situation of
people arriving by boat. Among them, Amnesty International mentioned that:
In 2014, the Abbott government introduced Temporary Protection Visas and Safe
Haven Enterprise Visas, as well as the highly unfair ‘Fast Track’ process, which
discriminated against a specific group who arrived by boat. Not only did the
government remove the definition of refugee from the Migration Act, they also denied
this group of asylum seekers arriving by boat permanent protection visas (only
offering three or five year visas at most), keeping them in perpetual state of limbo,
never to be reunited with their family. While the current government has allowed those
on TPVs and SHEVs to apply for permanent visas, they still face issues reuniting with
their family and thousands who were rejected under the unfair ‘Fast Track’ process
now risk being returned to danger.2
4.
This kind of information could have been used by the author and her counsel to
exemplify the discriminatory law and practice of Australia vis-à-vis asylum seekers arriving
by boat.
5.
The second element deeply concerning in the present complaint is the “choice rhetoric”
used by Australia in its observations on the complaint. To paraphrase the Amnesty
International report mentioned above, it is important to debunk this regressive type of rhetoric,
which conveys the message that asylum seekers are fully free in their choice and the situation
they created themselves by choosing to move and, therefore, they should be responsible for
any consequence. In paragraph 5.9 of the Views on communication No. 3665/2019, the State
affirmed for instance that since “the family can … remain together, separation is not a
necessary consequence of the State Party’s actions.” It added (para. 5.13) that “As lawful
non-citizens, the daughter and her father [should they choose not to depart Australia with the
1 Working Group on Arbitrary Detention, opinion No. 2/2019.
2 Amnesty International Australia, “Debunking 10 myths about refugees in Australia”, 26 April 2024.
Available from https://www.amnesty.org.au/debunking-10-myths-about-refugees-in-australia/.
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author] can reside together in Australia and are able to travel between Australia and Viet
Nam.”
6.
The Australian authorities pushed even further the “choice rhetoric”: according to
them, Ms. Tran signed a document when she was pregnant “consenting for her unborn child
to be held in immigration detention with her once she had given birth” (para. 2.5). Therefore,
according to Australia, the author’s daughter was not detained in breach of articles 9 and 24
of the Covenant but was a “guest” (sic) of her mother.3
7.
Unfortunately, such a level of dehumanization by migration policies, based on the
“choice rhetoric”, is not isolated. On the contrary, it was also used by Spain – fully endorsed
and interiorized by the Grand Chamber of the European Court of Human Rights – in the
controversial judgment N.D. and N.T. v. Spain, dealing with collective pushbacks of
migrants.4
8.
In the Views on communication No. 3665/2019, we are satisfied that, contrary to the
European Court, the Human Rights Committee unequivocally rejected this type of discourse
and reaffirmed its firm position regarding the State’s international obligations under the
Covenant when deciding and applying migratory measures and policies.
3 See footnote 1 of the current views.
4 Applications nos. 8675/15, 8697/15, para. 231.