Court/Judicial body:
OHCHR – Human Rights Committee
Citation:
Communication No. 1937/2010
Date:
26 March 2015
Instruments Cited:
International Covenant on Civil and Political Rights: articles 2 (Enjoyment for all and access to remedies), 13 (Right not to be arbitrarily expelled from a country), 17 (Right to privacy), 23 (Rights relating to the family), 24 (Protection of the rights of the child) and 26 (Equality before law).
Case summary
Mansour Leghaei, an Iranian citizen born on 19 May 1962 claimed that the decision to deny him a permanent visa to remain in Australia made him liable to removal from Australia to Iran, in breach of a number of his rights as well as the rights of his wife and children under the International Covenant on Civil and Political Rights (‘The Covenant’). Mr Leghaei alleged in particular, that the State’s refusal to grant him a visa, which led to a duty to leave the country, constituted arbitrary interference with his family life under articles 17 and 23, and also violated his daughter’s rights under Article 24 as she was a minor at the time of departure and was not afforded the protection to which she was end under that provision.
The Committee found that a refusal to allow one member of a family to remain in its territory may involve interference in that person’s family life. The Committee stated that a decision by the State party that involves the obligatory departure of a father of a family that includes a minor child, and that compels the family to choose whether they should accompany him or stay in the State party, is to be considered “interference” with the family, at least in circumstances where, as here, substantial changes to long-settled family life would follow.
The Committee had then to determine whether this interference with Mr Leghaei’s family life was arbitrary or unlawful pursuant to Article 17 (para. 1) of the Covenant. The Committee held that the arbitrariness includes elements of inappropriateness, injustice, lack of predictability and due process of law. It found in this case that the State party’s procedure lacked due process of law, considering the author’s 16 years of lawful residence and long-settled family life in Australia and the absence of any explanation from the State party as to the reasons for terminating his right to remain, except for the general assertion that it was done for “compelling reasons of national security”. The Committee concluded that the State party had not provided Mr Leghaei with an adequate and objective justification for the interference with his long-settled family life and, as a result, has violated his rights, as well as the rights of his family, under Article 17, read in conjunction with Article 23, of the Covenant. Having reached this conclusion, the Committee decided not to examine separately the remaining grounds invoked by the author under articles 13 and 24 of the Covenant.
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