Ali Aqsar Bakhtiyari & Roqaiha Bakhtiyari v. Australia

The Bakhtiyaris, Afghani nationals, had illegally entered Australia and had been detained in a detention center. Two of the children were released into the hands of Adelaide caretakers where they remained.

The Bakhtiyari family subsequently filed a complaint that their prolonged detention violated article 9 (1) (right to liberty and security of person) of the International Covenant on Civil and Political Rights (ICCPR). Indeed, the petitioners alleged that the prolonged and mandatory detention of the children resulted in the psychological harm to the children including psychological reports of depression and evidence of self harm.

The Committee held that the removal of the mother and the children in circumstances which would be particularly traumatic given the psychological harm caused to the children in detention and at the time of the decision, the existence of a new born child.

Further, the Committee also held that it had been proven that the children suffered ongoing and significant psychological effects caused by their detention, therefore the best interest of the children had not been taken into consideration by Australia until the children's release was ordered by the family court.

Therefore the Committee found that there had been a violation of article 24 (1) (child's freedom from discrimination) of the ICCPR and ordered the payment of compensation to Mrs. Bakhtiyari and the children in respect of their sufferance of Articles 9 (right to liberty and security of person) and 24 (freedom from discrimination) of the ICCPR.

"As to the claim under articles 17 and 23, paragraph 1, the Committee observes that to separate a spouse and children arriving in a State from a spouse validly resident in a State may give rise to issues under articles 17 and 23 of the Covenant. In the present case, however, the State party contends that, at the time Mrs Bakhtiyari made her application to the Minister under section 417 of the Migration Act, there was already information on Mr Bakhtiyari's alleged visa fraud before it. As it remains unclear whether the attention of the State party's authorities was drawn to the existence of the relationship prior to that point, the Committee cannot regard it as arbitrary that the State party considered it inappropriate to unite the family at that stage. The Committee observes, however, that the State party intends at present to remove Mrs Bakhtiyari and her children as soon as "reasonably practicable", while it has no current plans to do so in respect of Mr Bakhtyari, who is currently pursuing domestic proceedings. Taking into account the specific circumstances of the case, namely the number and age of the children, including a newborn, the traumatic experiences of Mrs Bakhtiyari and the children in long–term immigration detention in breach of article 9 of the Covenant, the difficulties that Mrs Bakhtiyari and her children would face if returned to Pakistan without Mr Bakhtiyari and the absence of arguments by the State party to justify removal in these circumstances, the Committee takes the view that removing Mrs Bakhtiyari and her children without awaiting the final determination of Mr Bakhtiyari's proceedings would constitute arbitrary intereference in the family of the authors, in violation of articles 17, paragraph 1, and 23, paragraph 1, of the Covenant."

"9.7 Concerning the claim under article 24, the Committee considers that the principle that in all decisions affecting a child, its best interests shall be a primary consideration, forms an integral part of every child's right to such measures of protection as required by his or her status as a minor, on the part of his or her family, society and the State, as required by article 24, paragraph 1, of the Covenant. The Committee observes that in this case children have suffered demonstrable, documented and on–going adverse effects of detention suffered by the children, and in particular the two eldest sons, up until the point of release on 25 August 2003, in circumstances where that detention was arbitrary and in violation of article 9, paragraph 1, of the Covenant."