Bakhtiyari v. Australia
OHCHR – Human Rights Committee
Communication No 1069/2002
29 October 2003
International Covenant on Civil and Political Rights, article 17 (right to respect for privacy, the family, home and correspondence), article 23 (protection of the family), article 24 (protection of the child)
Convention on the Rights of the Child
Mr. Bakhtiyari had arrived in Australia illegally and later obtained a visa to remain in the country on the basis of his Afghan nationality and Hazara ethnicity. Mrs Bakhtiyari and their five children arrived to Australia separately, were detained and their applications to remain were refused at all instances. At a later point, the authorities found evidence which suggested that the family were of Pakistani nationality and not from Afghanistan, at which point Mr Bakhtiyari was put back in detention and later transferred to be with his family. In 2003, after reviewing evidence of the adverse effects detention has had on the children’s mental health, the Family Court ordered the release of the children pending the resolution of the parents’ application. The children’s total period of detention was two years and eight months. At the time when the case was before the Committee, Mrs Bakhtiyari was awaiting deportation and Mr Bakhtiyari was still in the process of appealing before the domestic courts.
In the Committee’s view, the detention of Mrs. Bakhtiyari and the children was arbitrary and contrary to article 9(1) of the Covenant, as the state could not account for why other less intrusive measures were not implemented. In addition, inability to challenge judicially such arbitrary detention was a violation of subparagraph 4 of the same article.
It was also held that the planned return to Pakistan of Mrs Bakhtiyari and her children without awaiting the final determination of Mr Bakhtiyari’s appeals would constitute an arbitrary interference with the family of the complainants in violation of articles 17 (right to respect for privacy, the family, home and correspondence) and 23 (protection for the family).
Finally, there was also a violation of article 24 (protection of the child) in that until the Family Court decision to release the children, other institutions had not been guided by the best interests of the child principle.
In considering the meaning of the “best interests of the child”, the Committee rejected the suggestion that article 24 of the Covenant should be interpreted in light of the Convention on the RIghts of the Child (CRC), on the grounds that the Human Rights Committee is not competent to examine violations of the CRC.
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