Winata v Australia
OHCHR – Human Rights Committee
Communication No. 930/2000
26 July 2001
International Covenant on Civil and Political Rights, Article 17 (right to respect for privacy, family, home and correspondence), Article 23 (protection of the family), Article 24 (protection of the child)
Mr Winata and Ms Li had both overstayed their visas when they met in Australia and commenced a relationship. In 1988 the couple had a child, Barry, born in Australia. Barry, by virtue of being born in Australia and having resided there for 10 years, acquired Australian nationality in 1998. The parents applied to be allowed to remain in Australia on family grounds but were refused. The complainant allege that forcing them to leave Australia would constitute an arbitrary interference with their family life in violation of their rights under the International Covenant on Civil and Political Rights.
The Committee agreed with the complainants and held that if they are deported, Australia would be committing a breach of article 17 (right to respect for privacy, the family, home and correspondence), 23 (protection for the family) and 24 (protection of the child). In this case of the parents having resided in Australia for over fourteen years and their son having grown up in the country from his birth, attended school and developed social relations, the state had to demonstrate additional factors to justify their removal, other than mere enforcement of its immigration policy.
Four of the Committee members issued a separate opinion, dissenting with the majority as in their opinion there was no international law obligation to allow the parents to remain in the country. In the opinion of the dissenters, while it may be true that the son would experience adjustment difficulties if the parents were to return with him to Indonesia, these difficulties were not such as to make the State party’s decision to require the authors to leave its territory disproportionate to its legitimate interest in enforcing its immigration laws.
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