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1. The authors of the
communication are Elizabeth and Josevata Karawa, both Fijian nationals born
in Fiji in 1968 and 1967, respectively. They bring the communication on
their own behalf and on behalf of their daughter Vanessa Karawa, an
Australian national at the time the communication was submitted, who was
born in Australia on 24 February 1989. The authors claim that their
expulsion from Australia to Fiji would amount to a violation by Australia of
articles 17, 23, paragraph 1, and 24, paragraph 1, of the Covenant. They are
represented by counsel.
THE FACTS AS PRESENTED
2.1 In 1987, the authors, both at that time illegally in Australia after
their temporary permits had expired, started a relationship. In February
1989, a daughter was born to them, who later, upon reaching the age of 10,
became an Australian citizen. In 1990, Mrs. Karawa applied (including her
husband and daughter in the application) for a protection visa on the advice
of a migration agent who suggested that an application for refugee status
was the only available course to achieve a legal presence in Australia.
2.2 On 31 July 1995, the (then) Department of Immigration and Ethnic Affairs
refused the application, finding that the harm or mistreatment claimed in
the event of a return to Fiji was not sufficient to amount to persecution.
On 22 August 1995, the authors engaged a second migration agent to appeal to
the Refugee Review Tribunal (RRT). An application for review was lodged. On
12 January 1996, the RRT received "signed and dated written advice"
withdrawing the application. On 2 May 1996, Mr. Karawa, with the support of
his employer, made an unsuccessful application for a visa under the
Employment Nomination Scheme.
2.3 In 2000, the authors, having allegedly not heard the outcome of the RRT
appeal, engaged the second migration agent to add them to a class action.
They obtained bridging visas on the basis of the class action application.
In May 2001, the migration agent advised that the class action had been
refused, but that another class action had been commenced. The authors
engaged the agent to add them to this second action. In July 2002, having
heard of the decision on the second action, the authors were advised upon
inquiry of the agent that they had not been included in the action as they
had never applied to the RRT. The authors argue that "it thus appeared that
[the agent] had never applied for review to the RRT as [Mrs. Karawa] had
requested and paid for". [FN1]
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[FN1] The authors however supply a letter of the RRT, dated 22 August 1995,
confirming that an application for review had been lodged with it that day.
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2.4 As, according to the Migration Act, an application to the RRT must be
made within 28 days of the relevant decision, the passage of six years meant
that review rights of the original immigration decision had been lost.
Moreover, the authors were allegedly unable to apply for any other
substantive on-shore visas, with the exception, with leave of the Minister,
of a further protection visa under section 48B of the Migration Act.
2.5 On 24 July 2002, Mrs. Karawa wrote to the Minister for Immigration and
Multicultural and Indigenous Affairs and the Minister for Citizenship and
Multicultural Affairs, seeking to remain in Australia. She was advised that
there was no option but to leave Australia, for which she was granted a
bridging visa in order to obtain a Fijian passport and make the necessary
arrangements. On 12 August 2002, Vanessa Karawa wrote to the Ministers and,
citing provisions of the Convention on the Rights of the Child, requested
that her parents be permitted to remain.
2.6 On 10 September 2002, the Minister for Immigration and Multicultural and
Indigenous Affairs responded to the effect that he had no legal power to
intervene, as no appeal to the RRT had been resolved against the authors. He
advised of a number of migration visa applications, including family-based
options, that the authors might wish to consider making from outside of
Australia.
2.7 On 30 September 2002, the authors' bridging visas expired and they
became unlawful non-citizens, with their whereabouts unknown. Steps will be
taken by the Australian authorities to remove them from Australia if they
are found.
THE COMPLAINT
3.1 The authors allege that their removal to Fiji would violate articles 17,
23, paragraph 1, and 24, paragraph 1, of the Covenant. In their view, to
have Vanessa remain in Australia is not an option, while they do not feel
they can take her to Fiji with them. They argue that if Vanessa returns to
Fiji, she will be isolated and stigmatized in their home village, as a
result of an earlier failed marriage of her mother. The authors point out
that Vanessa is an above average student, has neither Fijian friends nor any
desire to live there. Neither does she possess knowledge of the Fijian
language or culture. The authors and their daughter are also "highly
involved" in church life and the community.
3.2 The authors contend that an application for a parent visa made from
outside Australia would take "several years" to resolve. The Department of
Immigration's own documentation indicates that in view of the large number
of applicants for the 500 visas annually available in this category, "a very
substantial wait" can be expected.
3.3 In the authors' view, the case is "in principle" no different from that
in Winata et al. v Australia. [FN2] They argue that the notion of "family"
in the Covenant is to be interpreted broadly, and that the relationship
between the authors and their daughter clearly qualifies as such. In
addition, an expulsion separating parents from a dependent child, as would
in their view occur in the present case, amounts to "interference" within
the meaning of article 17. [FN3] Finally, while lawful under Australian law,
the removal of the parents is arbitrary. They explain that the only means by
which separation may be avoided would be for Vanessa to leave with them and
relocate to Fiji. In their view, this would not be in accordance with the
provisions, aims or objectives of the Covenant, nor be reasonable in the
circumstances, as Vanessa is fully integrated into Australian society, has
never been to Fiji and has no cultural ties to that country. It would also
be unreasonable, in their view, to expect Vanessa to remain in Australia
while the parents are removed. Thus, the authors regard their removal as
being contrary to articles 17, 23, paragraph 1, and 24, paragraph 1, of the
Covenant.
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[FN2] Case No 930/2000, Views adopted on 26 July 2001.
[FN3] The authors cite Moustaquim v Belgium (European Court of Human Rights,
judgment of 18 February 1991) for this proposition.
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3.4 The authors support this conclusion by referring to articles 8 and 12 of
the European Convention on Human Rights and Fundamental Freedoms, although
they regard these provisions as providing a lesser protection than the
Covenant. The authors suggest that the interpretation of the Covenant should
take a liberal approach, as allegedly taken by the European Court, to cases
of non-citizens in existing families who are present in a State.
3.5 On 7 January 2003, the authors supplied a consultant psychiatrist's
report on the family, dated 29 September 2002. The report states that Mrs.
Karawa has no significant family connections to Fiji, having only a
step-brother there. She felt rejected by her extended family as a result of
a failed marriage. Her father lives in Sydney, Australia. Mr. Karawa has
three married sisters living in Fiji, but no family or friends there that
could support his family if he was returned to Fiji. According to the
psychiatrist, Vanessa is "very close" to her parents, and, while proud of
her Fijian background, "does not identify strongly with Fijian society". In
his view, Vanessa remaining alone in Australia is "hard to imagine" and
would be "emotionally and psychologically catastrophic". On the other hand,
moving to Fiji would be "extremely difficult". Her education "would probably
cease or be abbreviated" on account of the costs, while she would be "quite
lost" in the culture due to a lack of language or cultural knowledge. Her
Indian physical features, while not pronounced, "could lead to
difficulties". Transferring her from a positive multicultural society to a
bicultural society with recent racist experiences would be "extremely
cruel", the effects of which would be compounded by her family being
"economically crippled".
THE STATE PARTY'S SUBMISSIONS ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION
4.1 By submissions of 10 September 2003, the State party disputed both the
admissibility and the merits of the communication. On the facts, the State
party observes that in 1986 Mrs. Karawa was served, and signed an
undertaking to comply with, a "Requirement to Leave Australia" form,
following expiry of her temporary permit. This was after an application for
divorce in 1986 by Mrs. Karawa's first husband, in circumstances where she
had arrived in Australia and only stayed with him a few days. She did not
depart and, with her parents in Australia, ceased contact with the
Australian Department of Immigration. Between 1986 and 1988, numerous
attempts were made to locate her.
4.2 The State party regards the claim under article 17 as inadmissible for
failure to exhaust domestic remedies. It contends that the family withdrew
its application to the RRT on 12 January 1996. Even if the RRT had decided
against them, they could have either pursued review in the Federal Court and
subsequently the High Court, or alternatively applied directly to the High
Court in its original constitutional jurisdiction. The State party also
argues that the authors' contentions do not come within the purview of
article 17 or any other right recognized by the Covenant, and thus are
inadmissible under article 3 of the Optional Protocol, as well as being
insufficiently substantiated for purposes of admissibility, and inadmissible
under article 2.
4.3 On the merits of the article 17 claim, the State party observes that the
proposed action is plainly lawful. The State party regards "interference"
with the family unit as an act inevitably separating a family unit (rather
than simply a substantial change to long-settled family life). In the
present case, removal of the parents will not have this effect: the entire
family, including Vanessa, are free and have the right to leave Australia
and enter Fiji. Doing so would not affect Vanessa's Australian citizenship.
In addition, as a child of Fijian nationals, she has been exposed to a
degree of Fijian culture in Australia and has developed a level of cultural
affinity with Fiji. While moving to Fiji may involve a temporary disruption
of the normal pattern of family life, this is not "interference" within the
meaning of article 17.
4.4 The State party argues that it does not follow from one family member's
entitlement to remain in Australia that other family members, nationals of
another State, are also so entitled. Requiring two nationals of another
State to return home cannot amount to "interference" with the family simply
because they have had a child in Australia. While the family has remained in
Australia for fourteen years, it has been there without lawful authority.
Mr. and Mrs. Karawa cannot rely on illegal actions as the basis of their
claim. The State disputes that Vanessa relocating to Fiji would not be in
accordance with the provisions, aims and objectives of the Covenant.
Australia is not requiring her to leave or remain in Australia – that is a
parental decision. It is also common for families to move interstate or
overseas, taking children with them. The purpose of the Covenant cannot be
to prohibit children moving with families. Finally, as Vanessa can obtain
Fijian citizenship by registration (while retaining Australian citizenship),
all three family members can live in a country of which they are nationals.
4.5 Even if, in the light of these arguments, the Committee were to consider
that "interference" occurred, the State party regards it as not arbitrary
and thus not contrary to article 17. The notion of arbitrariness includes
notions of capriciousness, injustice, unpredictability, disproportionality
or unreasonableness. The State party refers to its sovereign right in
international law to determine the entry and presence in the country of
non-nationals. The right to control migration is regulated by comprehensive
laws and policies, which seek to strike a balance between the need to allow
people to come and go from Australia, and other aspects of the national
interest. The migration program is carefully planned and managed in the
national interest, to balance Australia's social, economic, humanitarian and
environmental needs. The number of legal migrants and refugees is decided
each year by the Government after extensive consultations with the
community.
4.6 In order to maintain the integrity of this program, Australian law
provides provide for the removal of persons with no right to be or remain in
Australia. The consistent application and enforcement of these laws is an
important part of maintaining the legitimacy of the migration program and
the rule of law in Australia. These laws are reasonable and not arbitrary,
are based on sound principles of public policy that are consistent with
Australia's standing as a sovereign nation and with its Covenant
obligations. They are predictable, widely-known and consistently enforced,
without discrimination.
4.7 Accordingly, the State party submits that the Views of the majority in
Winata [FN4] should not be applied, as it does not accept that it should
refrain from enforcing its migration laws wherever unlawful non-citizens are
said to have established a family life. The State party observes that the
dissenting members pointed out that article 17 referred to interference with
family, rather than family life. They also observed that the interpretation
in effect conferred a right to remain on persons founding a family and
managing to escape detection for a sufficiently long period, an
interpretation that, in their view, "ignores prevailing standards of
international law". The dissenting members also referred to the unfair
advantage such an approach conferred on persons who circumvented immigration
requirements over those who had not.
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[FN4] Op.cit.
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4.8 In response to the authors' reference to article 8 of the European
Convention, the State party observes that a list of permissible exceptions
to the right such as contained there was deliberately omitted from the draft
of article 17 of the Covenant, in order to give States a wide discretion to
determine permissible forms of interference. In addition, under article 8 of
the European Convention, interference must be "necessary" to be consistent
with the article, which is a stricter standard than an absence of
arbitrariness required under article 17 of the Covenant.
4.9 On the basis of these principles, the State party argues that
application of its removal laws to the authors would not be arbitrary.
Rather it will be the foreseeable, predictable application of laws known to
them since 1986. Both had signed government forms recognizing that removal
may follow after unlawful presence in Australia, and the effect of the law
was explained to them numerous times over a fifteen year period. Such an
application of law cannot be arbitrary. The State party points out that it
was a result of the family's withdrawal of their RRT application, and the
subsequent absence of any RRT decision, that the Minister decided he had no
power under law to substitute a more favourable decision. Currently, the
authors are not lawfully in Australia, and the Covenant does not confer a
right to choose a preferred migration destination. During the short periods
in which their status in Australia was lawful, they availed themselves of
all procedural guarantees and instituted all proceedings available at law to
them. Throughout these proceedings, it was made clear that if they did not
obtain permanent residency or if visas expired, they would have to leave. In
summary, the authors' claims show little more than that they wish to remain
in Australia and would experience some disruption if required to move to
Fiji.
4.10 The State party argues that the claim under article 23, paragraph 1, is
insufficiently substantiated, for purposes of admissibility, as the authors
direct their argument towards establishing an alleged interference with the
family in breach of the negative obligation in article 17 on the State party
to refrain from certain action. Article 23, by contrast, comprises positive
obligations on the State party to act to protect the family as an
institution, and it is not the case that any breach of article 17 ipso facto
also establishes a breach of article 23. In the absence of any further
argument by the authors as to how a violation of article 23 has been made
out, therefore, this claim should be declared inadmissible.
4.11 On the merits of the claim, the State party submits, in detail, that it
plainly meets the obligation, at State and federal level, of institutional
recognition and support of the family unit and the resource investment
commensurate with such recognition, including in the area of child
protection. The State party respects the fact that the authors and their
daughter are a family unit, and does not seek to separate or destroy that
unit. The daughter, who the State party states has the right as a child of
Fijian nationals to enter and live in Fiji and become a citizen by
registration, [FN5] may travel with the family. There is nothing to suggest
relocation will harm her, and there is little reason to suppose she could
not do so successfully, as children commonly do. Even if she experiences
some inconvenience or period of adjustment to new surroundings in Fiji, this
does not amount to a breach of Covenant rights. If, by contrast, the parents
elect for her to remain in Australia, that is a choice of theirs that is not
required by the State party.
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[FN5] The State party refers to sections 21 and 25 of the Fijian Citizenship
Act (Amendment) Decree 2000. Section 25 provides for entry and residence
into Fiji of any child of a citizen.
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4.12 The State party submits that article 23, paragraph 1, must also be read
against States' acknowledged right in international law to control entry,
residence and expulsion of aliens. While Australia protects families within
its jurisdiction, this protection must be balanced with the need to take
reasonable measures to control immigration. This is a right recognized in
articles 12 and 13 of the Covenant. It points out, with reference to its
third periodic report under the Covenant, that it implicitly and explicitly
recognizes the importance of the family as the fundamental social unit.
[FN6] One significant example in recognition thereof is the creation of a
special visa class, with particular privileges, for parents to apply for in
order to live in Australia with their children.
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[FN6] CCPR/C/AUS/98/3, at para 1137.
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4.13 Concerning the claim under article 24, paragraph 1, the State party
argues that this claim is also insufficiently substantiated, for purposes of
admissibility. As with article 23, article 24 is a positive obligation on
the State party requiring it to act to take measures concerning the
protection of children, and a breach thereof is not necessarily established
by information directed at establishing a breach of the negative obligation
in article 17 to refrain from action. As the authors direct arguments at
establishing an interference with article 17 and do not supply additional
evidence as to article 24, this claim should be declared inadmissible.
4.14 As to the merits of the claim, the State party argues that, in
fulfillment of its positive obligation to provide special protection to
children, it has implemented a number of laws and policies designed
specifically to protect children and to provide assistance for children at
risk. Vanessa is afforded the same measures of protection as other
Australian children, aimed at ensuring their health, safety and well-being.
There are highly developed systems of family law, child protection law and
criminal law, with States and Territories possessing government departments
responsible for administering programs and policies of child protection.
Special police units are dedicated to preventing and solving crimes against
children. These and other measures are outlined in the State party's initial
report under the Convention on the Rights of the Child, [FN7] as well as its
third periodic report under the Covenant. [FN8] If Vanessa remains in
Australia, she will continue to enjoy this protection, with or without her
parents. There is nothing to suggest that she would not adjust to the
changes necessary in relocation, and if she remains in Australia, her
parents have the option of applying, from Fiji, for an off-shore parent
visa. The authors' claim that the State party has not provided Vanessa with
the required measures of protection is therefore without any merit.
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[FN7] CRC/C/8/Add.31.
[FN8] Op.cit.
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THE AUTHORS' COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 By letter of 13 January 2004, the authors disputed the State party's
observations. On the admissibility of the case, while counsel describes the
application to the RRT as "apparently withdrawn by the applicants", he
argues that that proceeding was concerned with refugee status. In his view,
requiring the authors to have pursued this avenue on merits review to the
RRT and thereafter in the courts by judicial review was rejected in Winata
and should again be rejected. Rather, the current claim relates to a
"separate and distinct" claim relating to family unity and stability. The
authors thus argue that if the State party's argument were taken to its
logical conclusion, each author would have to make an application for every
conceivable category of visa and exhaust domestic remedies on that
application, prior to approaching the Committee.
5.2 On the merits, the authors argue that Vanessa, aged 14 and an Australian
citizen since the age of 10, has lived all her life and undertaken all her
schooling in Australia. Her parents, by contrast, must be removed "as soon
as is reasonably practicable" under the terms of the Migration Act. Vanessa
is thus left with the choice of leaving Australia with her parents or
remaining without them. While conceding that it is "reasonably common" for
children to relocate with their parents, the authors argue that in Vanessa's
case such relocation would be forced on her as an Australian citizen, "by
the pernicious operation of two Australian statutes, as well as by her youth
and familial ties." The application of Australian law to this case is thus
said to be arbitrary, and to fall factually into the exceptional
circumstances identified in Winata.
5.3 The authors dispute the State party's view that "interference" with a
family requires the necessary separation of its members. Interference may
also result from disruption to its usual way of life, or by causing it to do
something it may not otherwise do, such as to relocate or to separate. For
the authors, the choice imposed on the family by the combined operation of
the Citizenship Act and the Migration Act violates articles 23 and 24 of the
Covenant. The State party's obligations to protect family and children go
beyond simple enactment of protective laws to require remedial legislative
action to protect the integrity of the families in the authors' situation.
SUPPLEMENTARY SUBMISSIONS BY THE STATE PARTY
6. By Note of 31 March 2004, the State party reaffirms its original
argument, in addition disputing the characterization of the authors' claim
before the Committee as a separate and distinct claim relating to family
unity and stability that had nothing to do with their refugee applications.
The State party observes that the claim for protection against possible
future separation of the family unit was expressly referred to in the claim
for a protection visa. Ms. Karawa's application for a protection visa, dated
24 September 1990, expressly stated by way of information relevant to her
claim that she had very strong ties with Australia, having been there since
1985, and having an Australian-born child as well as immediate family who
were Australian citizens and residents. As a result, a request for review by
the RRT was an available domestic remedy that offered a reasonable prospect
of success.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
7.2 The Committee recalls that article 5(2)(b) of the Optional Protocol
requires that individual applicants must have exhausted available domestic
remedies. The Committee recalls that in the case of Winata v Australia,
[FN9] the authors had sought a review of their case before the independent
Refugee Review Tribunal (RRT). On the overall record of that particular
case, the Committee went on to subsequently determine that, in the specific
circumstances, the authors could not be required to pursue further review of
the adverse RRT decision in the courts. In the present case, by contrast,
the authors applied to, and then withdrew, their case from the first
independent review instance competent to address their case, the RRT. The
Committee refers to its jurisprudence that when an author has initiated a
remedy before an independent tribunal on his or her own motion, the
Committee requires such proceedings to be properly exhausted. [FN10] This is
especially so when the authors have, as in the present case with respect to
family life issues, made a live question before the domestic authorities of
the same issues as those advanced to the Committee (see paragraph 6, supra).
The authors' withdrawal of their application before the RRT thus deprived
both the State party of any opportunity to address the authors' claims
before its own administrative appeals tribunal and through subsequent
judicial review. The Committee observes in this respect that whether the
application to the RRT was withdrawn by the authors or by their
representative(s) is immaterial, as according to the Committee's
jurisprudence the conduct of counsel is generally imputed to the authors. In
the absence of any information to suggest why the withdrawal of the
application to the RRT is not imputable to the authors, it follows that the
communication must be considered inadmissible, pursuant to article 5,
paragraph 2(b), because of failure to exhaust domestic remedies.
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[FN9] Op.cit.
[FN10] See, for example, Baroy v The Philippines Case No 1045/2002, Decision
adopted on 10 November 2003, and Benali v The Netherlands Case No 1272/2004,
Decision adopted on 11 August 2004.
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8. The Committee therefore decides:
a) that the communication is inadmissible under article 5, paragraph 2(b),
of the Optional Protocol;
b) that this decision shall be communicated to the author and to the State
party.
__________________________
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.
Pursuant to rule 90 of the Committee's rules of procedure, Committee member
Mr. Ivan Shearer did not participate in the adoption of the present
decision. |
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