HUMAN RIGHTS IN AUSTRALIA Winata v Australia (2002)

HUMAN RIGHTS IN AUSTRALIA

Winata v Australia (2002)

THE WINATA CASE

• Mr. and Mrs. Winata both overstayed their visas and were unlawful residents in Australia. In 1998 they unsuccessfully applied for refugee status and the Department of Immigration ordered their deportation.

• Mr. and Mrs. Winata complained that deporting them was arbitrary and unreasonable because it would split up their family. Their thirteen year old son Barry, an Australian citizen, had lived his whole life in Australia, only spoke English and would not fit in well in Indonesia.

Violated rights Exhaustion of domestic remedies arbitrary interference with his family / protection of the family Right of the child to protection

Deportation of parents of Australian child is arbitrary interference with family, and fails to protect the family unit and the rights of children.

Article 23 states ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.

Denial of the right to family life—in Winata v Australia, the Human Rights Committee found that deportation of the parents of a 13-year-old

Child who was born in and had grown up in Australia constituted interferencewith the right to family life;

WHAT THE CASE ENTAILED…

• Mr. and Mrs. Winata both overstayed their visas and were unlawful residents in Australia. In 1998 they unsuccessfully applied for refugee status and the Department of Immigration ordered their deportation.

• Mr. and Mrs. Winata complained that deporting them was arbitrary and unreasonable because it would split up their family. Their thirteen year old son Barry, an Australian citizen, had lived his whole life in Australia, only spoke English and would not fit in well in Indonesia.

Violated Rights Exhaustion of domestic remedies arbitrary interference with his family / protection of the family Right of the child to protection

Deportation of parents of Australian child is arbitrary interference with family, and fails to protect the family unit and the rights of children.

Article 23 states ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.

Denial of the right to family life—in Winata v Australia, the Human Rights Committee found that deportation of the parents of a 13-year-old

Child who was born in and had grown up in Australia constituted interference

SUGGESTIONS• The courts claim that if Mr. and Mrs.. Winata are to

be removed, the only way to avoid their separation from Barry is for him to leave with them and relocate to Indonesia. They claim however that Barry is fully integrated into Australian society, speaks neither Indonesian nor Chinese, and has no cultural ties to Indonesia since he has always lived in Australia. Alternatively, the courts contend it would be unconscionable and very damaging to break up the family unit and set Barry adrift in Australia and if he was to be left there while they returned to Indonesia it would still break them.

Effectiveness of the law• In Winata v Australia, for example, the UNHRC found that the proposed

deportation of two parents of an Australian citizen, who was 13-years-old, constituted a violation of, inter alia, article 17 of the ICCPR which prohibits arbitrary interference with the family. The UNHRC stated that Australia was under an obligation to provide the family with an effective remedy which included properly considering the application for parent visas with due consideration for the status of the child as a minor (such consideration being required by article 24 of the ICCPR). The UNHRC further noted that Australia was ‘under an obligation to ensure that violations of the ICCPR in similar situations do not occur in the future.’

• The law has been ineffective because Mr. and Mrs. Winata currently belong to no state or country and are not citizens of any country.

Continue……….• Some of the issues identified as problematic in

migration litigation are complexity, costs and delay . Mr. and Mrs.. Winata case was not settled (As of July 2002, Mr. and Mrs. Winata had not been deported. Their future remains uncertain) and the delay cost them lots of money.