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1.1 The author of the
communication is Brian John Lawrence Burgess, a British citizen born in
England in 1952, residing in Australia from 1969 to 10 July 2000, date of
his deportation from Australia to the United Kingdom. The author is
represented by counsel Mauro Gagliardi and Fred John Ambrose of the
International Federation of Human Rights, who submitted an authorisation
from the author to act on his behalf.
1.2 By letter of 17 July 2001, the author submitted a request for interim
measures to allow him to return to the State party and to avoid irreparable
damage to him and his family. The request was denied by the Committee's
Special Rapporteur on New Communications on 18 July 2001.
1.3 On 17 August 2001, counsel included also the author's wife, Jennefer
Anne Burgess, an Australian citizen born in 1949, and their children Dustin,
born in Australia on 29 March 1983, Luke and Malia, twins born in Australia
on 27 April 1985, all still residing in Australia. However, counsel did not
submit an authorisation neither from the author nor from the author's wife
and children to act on behalf of them.
1.4 Counsel claim that the members of the family are victims of violations
by Australia of articles 2, 3, 5, 7, 9, 10, 12, 13, 14, 16, 17, 23, 24 and
26 of the International Covenant on Civil and Political Rights (the
Covenant).
FACTUAL BACKGROUND
2.1 On 2 September 1969, at age 17, the author migrated to Australia under
the British Boy's Movement for Australia, and was granted a permanent
resident's visa. In the early 1970's, he married Jennifer Anne Burgess and
they had three children.
2.2 In the beginning of July 1996, the author was arrested. On 24 October
1996, he was convicted of two charges of "import of trafficable quantity of
prohibited drug (cocaine)", and sentenced to imprisonment for a term of
seven years with a non parole period of four years, on each charge, to be
served concurrently. While in prison, the author participated in a work
release program in preparation for his release.
2.3 On 27 March 1998, Mr. Burgess was sent a Notice of intention to cancel
his visa by the Department of Immigration. On 16 March 2000, after an
interview in relation to this notice, Mr. Burgess' visa was cancelled by the
Minister under section 501 [FN2] of the Migration Act 1958 (2) (the Act), on
the grounds that he had a "substantial criminal record" under section
501(6)(a) [FN3] of the Act, and consequently failed to pass the character
test. If a person is deemed to fail the character test, discretion must be
exercised by the Minister, who must evaluate primary and other
considerations such as the protection of the Australian community, the best
interests of the child etc. The Minister's decision was based on a report
prepared by the case officer in accordance with the Act. This report listed
the principal factors to be taken into account by the Minister while
deciding on the author's case, and concluded that the only factor in favour
of cancellation of the author's visa was the serious nature of his offence.
Factors against cancellation were the assessment of the risk of recidivism
as low and the considerable hardship that the children, his wife and the
author would suffer if Mr. Burgess' visa was cancelled and he was removed to
the United Kingdom.
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[FN2] Section 501 (2) of the Act stipulates that "The Minister may cancel a
visa that has been granted to a person if:
a) the Minister reasonably suspects that the person does not pass the
character test; and
b) the person does not satisfy the Minister that the person passes the
character test."
[FN3] Section 501(6)(a) stipulates that "a person does not pass the
character test (inter alia)if:
a) the person has a substantial criminal record (as defined by subsection
(7))".
According to subsection 7, "a person has a substantial criminal record
(inter alia)if:
c) the person has been sentenced to a term of imprisonment of 12 months or
more, or
d) the person has been sentenced to 2 or more terms of imprisonment (whether
on one or more occasions) where the total of those terms is 2 years or
more".
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2.4 On 14 April 2000, the author was notified of the cancellation of his
visa by the Department of Immigration and Multicultural Affairs. The notice
indicated that "because the Minister decided your case personally, you are
excluded from appealing this decision to the Administrative Appeals
Tribunal. However, you may wish to seek further legal advice as to other
avenues of legal review which may be available to you."
2.5 On 27 April 2000, the Minister declined to reconsider his decision of 16
March on the basis that section 501(2) does not incorporate a power to
revisit decisions made under it. On 5 July, the author applied to the
Federal Court for review of the Minister's "decision" of 27 April. The
application was dismissed on 10 July on the grounds that it was not a
"decision", as the Minister has no power to review a decision made pursuant
to section 501(2) of the Act.
2.6 On 10 July 2000, Mr. Burgess was released on parole, and on the same
day, was removed to the United Kingdom, after living more than thirty years
in the State party. On 23 August 2001, he lodged, through his wife, an
application for a spouse-sponsored visa, which was denied.
2.7 With regard to the requirement of exhaustion of domestic remedies, the
author contends that he has exhausted available remedies.
2.8 The author states that he has submitted a complaint to the European
Court of Human Rights, but the complaint before that Court is directed
against the United Kingdom only.
THE COMPLAINT
3.1 The author claims that his deportation to the United Kingdom deprives
him of living in the country that has been his home for all his adult life.
In addition, he contends that the family unit has been divided as his
deportation results in a permanent separation from his wife and children,
who have stayed in Australia and cannot visit him due to financial reasons.
3.2 The author further alleges a violation of his Covenant rights because he
considers that the decision of the Minister was arbitrary and an abuse of
his discretion, as it was taken in disregard of the recommendations of the
case officer who prepared the report on his case.
3.3 He claims that his deportation amounts to psychological torture, both
for him, his wife and children. He argues that during the period of his
sentence, he was provided with day release and week-end release, time which
he spent solely with his family. During this period, his children were led
to believe that this was a process of reconciliation with the family, but it
was not. He also points out that he was not permitted to say a farewell to
his family before his removal.
3.4 The author claims to be the victim of inequality, as expulsion orders
which are not signed directly by the Minister can be appealed to the
Administrative Appeals Tribunal, while he was denied such opportunity, as
the Act provides that deportation orders signed by the Minister are
"non-appealable". In addition, the author claims that as a British citizen
who arrived in 1969, he falls into a category, defined by the High Court in
its Patterson ruling, [FN4] of individuals who cannot be deported because
they cannot be considered as "aliens" for the purposes of the Australian
constitution and are therefore not subject to the Migration Act. The author
considers that he was treated unequally compared to other individuals who
arrived prior to 1973, and whose deportation orders were cancelled by the
High Court for this reason.
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[FN4] Counsel refers to the ruling of the High Court of Australia of 6
September 2001 (Re: Patterson; Ex parte Taylor S165/2000).
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3.5 Finally the author contends that he has been punished twice for the same
offence.
THE STATE PARTY'S SUBMISSION ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION AND AUTHOR'S COMMENTS
4.1 On 11 March 2002, the State party commented on the admissibility and
merits of the communication. It submits that the entire communication is
inadmissible ratione personae in so far as it purports to be lodged on
behalf of Mrs. Burgess and the Burgess children, as they have not given
their authority to act on their behalf. It points out that "there is no
evidence that either Mrs. Burgess or any of the Burgess children have
expressly authorised counsel to act on their behalf. In relation to the
Burgess children, there is no evidence that either Mr. or Mrs. Burgess
authorised the representatives to act on behalf of any of the Burgess
children who do not have the capacity to provide such authorisation
themselves (although on this point Australia notes that the age of the three
children means that they are likely to be able to provide consent on their
own behalf, should they wish to). It underlines that for the communication
to be admissible in relation to Mrs. Burgess and the three children, counsel
should have provided evidence: that Mrs. Burgess and either Mr. or Mrs.
Burgess on behalf of the children or any of the children personally has
authorised counsel to act on their behalf; or that counsel have a sufficient
close relationship with Mrs. Burgess and the children to justify them acting
without express authorisation, and that the circumstances of the case
require this.The State party contends that counsel provided no such
evidence, although they were fully aware of this requirement, as they did
submit such an authorisation on behalf of Mr. Burgess.
4.2 The State party further considers that the communication is inadmissible
for failure to exhaust domestic remedies in relation to the decision to
cancel the author's visa and his removal to the United Kingdom. It argues
that the author incorrectly asserts that the decision of the Minister to
cancel the author's visa and to remove him was "non-appealable", and that
although the decision could not have been reviewed by the Administrative
Appeals Tribunal, its legality could have been challenged in the Federal
Court or the High Court of Australia. These remedies were available, known
to the author and his advisers and would have provided an effective remedy
to any defects in the decision made by the Minister. However, the author
failed to pursue these appeals within the statutory time lines set out in
the Migration Act.
4.3 In addition, the author could have availed himself of constitutional
remedies such as seeking the judicial review of the Minister's decision by
the High Court in its original jurisdiction, seeking leave to commence an
action in the High Court challenging the decision to cancel his visa and his
removal from Australia, and bringing an action for habeas corpus against
Australia in the High Court. It has not been demonstrated that these
remedies were not available or would have been ineffective.
4.4 The State party submits that, with the exception of the allegation of a
violation of article 9, paragraph 1, in relation to Mr. Burgess, all of the
allegations contained in the communication are inadmissible under article 3
of the Optional Protocol in that they are incompatible with the provisions
of the Covenant. A number of the allegations are inadmissible under article
1 of the Optional Protocol in relation to certain members of the family as
they cannot be considered victims of the alleged violations. Finally, the
State party submits that the entire communication is inadmissible under
article 2 of the Optional Protocol for failure to substantiate any of the
allegations.
4.5 On the merits, the State party argues that the allegations are without
merit as the evidence provided is not specific, pertinent and sufficient to
permit the examination of the merits of the alleged violations. As to a
possible violation of article 7 and the allegations of "psychological
torture", the State party submits that the author was informed that he would
be removed from Australia upon his release from prison approximately three
months before the release, and that he had visitation rights during this
period. Furthermore, he was aware that he would not be in the public contact
area of the airport prior to departure. He therefore had the opportunity to
say farewell to his family in prison well before his release. With regard to
the claim that the author's deportation constitutes "psychological torture",
the State party argues that its treatment of the Burgess family did not
include any of the elements of torture, i.e. the intent, fulfilment of a
certain purpose and/or the intensity or severe pain, and that the treatment
was reasonable and in accordance with the State party's immigration laws. On
the issue of removing the author from Australia, after permitting him to
have day and week-end access visits with his family, the State party submits
that all of the author's rights as a prisoner were respected; this does not
amount to a violation of article 7.
4.6 On the alleged violation of article 9, the State party submits that the
author's treatment was in accordance with procedures established by law (the
Migration Act), and that his removal resulted directly from his status as an
unlawful non-citizen pursuant to article 189 of the Act. The policy of
detaining unlawful non-citizens pending removal is reasonable, necessary and
proportionate to the ends sought, and the author was not subject to
arbitrary detention. The Minister's decision was not contrary to the
recommendation of department officials, as the briefing to the Minister
referred to by the author did not contain any recommendation. Finally, it
submits that its migrations laws are not arbitrary per se, and that they
were not enforced in an arbitrary manner in the case of the author.
4.7 On article 10, the State party indicates that the communication does not
assert that the author has been detained. It underlines that he was detained
for approximately one hour at the airport prior to boarding his flight, and
that he was treated humanely during this period.
4.8 In relation to article 12, paragraph 1, the State party notes that the
author was not lawfully in Australia at the time of his removal, as he had
become an unlawful non-citizen due to the lawful cancellation of his visa.
The operation of article 12, paragraph 3, which establishes a number of
exceptions to the rights established by article 12, paragraph 1, including
restrictions "which are provided by law", means that the author's detention
and removal fall within the scope of this provision. With regard to article
12, paragraph 4, the State party considers that the author's link with
Australia does not possess the characteristics required for him to be able
to assert that this is his country for the purposes of this provision. In
particular, his situation does not give rise to the special ties and claims
as described in the case of Stewart against Canada. [FN5]
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[FN5] The State party refers to Communication No. 538/1993, Charles Stewart
v. Canada, Views adopted on 1 November 1996
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4.9 On article 13, the State party submits that the author was not lawfully
in Australia at the time of his removal to the United Kingdom, that the
decision to expel him was made in accordance with Australian law and that he
had the opportunity to have this decision reviewed.
4.10 With regard to article 14, the State party notes that the author does
not assert that his arrest or imprisonment in relation to importing drugs
amounted to a violation of any of the rights guaranteed by the Covenant. It
further emphasises that a decision relating to the right of an alien to
remain in the territory of a State party does not fall within the ambit of
article 14, paragraph 1, as such proceedings involve neither the
determination of a criminal charge nor the determination of "rights and
obligations in a suit of law". The author was afforded due process in
relation to the decision to cancel his visa and points out that the
allegation that the Minister's decision was not subject to appeal is
incorrect, as he was able to seek review of the legality of this decision in
either the Federal Court or the High Court.
4.11 On the alleged violation of article 17, the State party submits that
requiring one member of a family to leave Australia while the other members
are permitted to remain, does not necessarily involve an "interference" with
the family life or either of the person removed or those who remain. It
submits that article 17 is aimed at protecting individual privacy and the
interpersonal relationships within a family. The author's removal was not
aimed at affecting the relationships between members of the family. The fact
that the family cannot be together in Australia at this point of time does
not in itself amount to an interference, and decisions about whether the
other family members will continue their lives in Australia or travel
elsewhere to be with the author are for them to make. The State party argues
that if the author's removal is found by the Committee to amount to
interference, such interference would be neither "unlawful" nor "arbitrary".
The removal was made in accordance with domestic law. The State party refers
to its submissions on article 9 and provides detailed explanations in
support of its submission that the Burgess family was not subject to
arbitrary interference, but rather was subject to treatment that is
reasonable, necessary, appropriate, predictable and proportional to the ends
sought, given the circumstances.
4.12 The State party argues that article 23, paragraph 1, does not prevent
the detention and removal of an illegal alien in accordance with Australian
domestic laws. Australia's obligations in relation to protecting the family
do not mean that it is unable to remove an illegal alien from Australia just
because that person has established a family with Australian nationals.
Article 23 must be read in light of the State party's right, under
international law, to control the entry, residence and expulsion of aliens.
The State party adds that the author's removal came about because of the
seriousness of his criminal conduct in Australia, and that its actions
constitute reasonable steps to ensure the integrity of its immigration
program and to protect Australian society from the effects of prohibited
drugs. The situation arose because of the author's own conduct, rather than
a failure by Australian authorities to protect the family unit.
4.13 In relation to article 26, the State party indicates that it assumes
that the alleged violation of article 26 is an alleged violation of the
guarantee of equality before the law in relation to the decision to cancel
the author's visa. The State party refers to its submissions on article 9
and argues that the decision to cancel the author's visa was not arbitrary,
but reasonable and necessary, appropriate, predictable and proportional to
the ends sought, which is demonstrated by the following factors: the
author's treatment was in accordance with procedures established by domestic
law; the clear failure of the character test, required under section 501 of
the Migration Act due to the nature of his criminal record, meant that it
was reasonable and predictable that his visa would be cancelled
notwithstanding that he had established a family in Australia; the decision
was based on a full consideration of all relevant issues, including the
author's criminal record, his conduct since arriving in Australia, the
interests of protecting Australian community from prohibited drugs, the
expectations of the Australian community, the deterrent effect of a decision
to cancel the author's visa for other non-citizens who may engage in
criminal conduct, the interests of Mrs. Burgess and the Burgess children and
Australia's international obligations.
4.14 As to violations of articles 2, 3, 5, 14, paragraphs 2 to 7, 16, 23,
paragraphs 2 to 4, and 24, the State party provides detailed arguments
dismissing these claims as either inadmissible or unmeritorious.
5. On 8 June 2004, counsel informed the Committee that they had no comments
on the State party's observations.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 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.
6.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for
purposes of article 5, paragraph 2 (a), of the Optional Protocol.
6.3 On the question of standing, the Committee notes the State party's
contention that the communication should be declared inadmissible ratione
personae with respect to Mrs. Burgess and the three children. It appears
from a reading of the file that after receiving the initial submission, the
Secretariat asked counsel, on 19 July 2001, in the following terms, "to
provide (...) written authorisation from Mr. Burgess himself and from his
family members if you also wish them to appear as victims". On 26 July,
counsel submitted an authorisation to act on behalf of Mr. Burgess only.
[FN6] The Committee notes that the authors' representatives have submitted
an authorisation to act on behalf of Mr. Burgess only, but that in August
2001 they included Ms. Burgess and the children in the communication without
any authorisation. It further notes that counsel did not wish to comment on
the State party's observation that they had no standing to represent Mrs.
Burgess and the children. There is nothing in the file before the Committee
in respect of the claims brought on behalf of Mrs. Burgess and the children
to show that Mrs. Burgess either authorised counsel to represent her, or
that Mr. or Mrs. Burgess or their children have authorised counsel to
represent the children. The Committee considers that counsel has no standing
before the Committee with respect to Mrs. Burgess and Dustin, Luke and Malia
Burgess and consequently declares the part of the communication alleging
violations of their rights inadmissible under article 1 of the Optional
Protocol.
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[FN6] The authorisation, dated 1 February 2001, reads as follows: "I, Brian
John Lawrence Burgess, (...) do hereby appoint and authorise Mauro Gagliardi
and Fred John Ambrose, of the International Federation of Human Rights,
(...) to represent and undertake on my behalf any and all claims and
assertions of violations of the rights secured to me under and pursuant to
the various United Nations Covenants and Articles (...) with respect to
actions taken against me by the government of Australia (...)."
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6.4 With regard to the State party's observation that the author has failed
to exhaust domestic remedies, because the author failed to appeal the
decision of the Minister to cancel his visa to the Federal Court or the High
Court of Australia within the statutory time lines set out in the Migration
Act, and in the absence of any comments by the author on availability and
the effectiveness of these remedies in this particular case, the Committee
considers that the author has not exhausted these domestic remedies invoked
by the State party and that the communication is accordingly inadmissible
under article 5, paragraph 2 (b), of the Optional Protocol.
7. The Committee therefore decides:
(a) that the communication is inadmissible under articles 1 and 5, paragraph
2 (b), of the Optional Protocol;
(b) that this decision will be communicated to the author and to the State
party.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued 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.
The International Covenant on Civil and Political Rights and its Optional
Protocol entered into force for the State party respectively on 13 November
1980 and 25 December 1991. |
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