The Right to Live Wherever You Want? The Right to Family Life following the UN Human Rights Committee's Decision in Winata
| Author | Richard Burchill |
| Published date | 01 June 2003 |
| Date | 01 June 2003 |
| DOI | http://doi.org/10.1177/016934410302100204 |
| Subject Matter | Part A: Article |
THE RIGHT TO LIVE WHEREVER YOU WANT?
THE RIGHT TO FAMILY LIFE FOLLOWING
THE UN HUMAN RIGHTS COMMITTEE’S
DECISION IN
WINATA
RICHARD BURCHILL*
Abstract
In situations where immigration decisions impact upon the right to family life the
ability of a State to control entry and residence to its territory is to be weighed up against
the rights of the individuals concerned to the enjoyment of family life. Any decision in
this area depends heavily on the particular circumstances that are involved. When it
comes to individuals illegally present in a State, international practice has usually
held that the right of a State to control immigration outweighs the right to family life
except in the most limited circumstances. The Human Rights Committee’s decision in
Winata is significant for the Committee has held that the removal of individuals
illegally present in the territory would result in violations of the right to family life.
This marks a shift in international practice which has commonly given States a wide
margin of discretion in upholding their immigration laws when it comes to
individuals illegally resident in the territory. This article will look at the Committee’s
decision and compare it to international practice with a view to determining if there
now exists for families a right to live wherever they choose.
1. INTRODUCTION
In July 2001 the UN Human Rights Committee adopted its views on the
application of Winata vs Australia.
1
The application concerned Australia’s
decision to deport Hendrick Winata and So Lan Li, common law husband
and wife, who had been living illegally in Australia after overstaying their
temporary visas. The application also included Winata and Li’s son, Barry,
who, due to his birth in Australia, received Australian citizenship upon
reaching the age of ten. The Committee found, with four members
dissenting, that the removal of the parents to Indonesia would result in
multiple violations of the ICCPR dealing with the protection of family life
Netherlands Quarterly of Human Rights, Vol. 21/2, 225-245, 2003.
@ Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 225
* McCoubrey Centre for International Law, Law School, University of Hull. Thanks to Prof.
Scott Davidson and Elina Steinerte for comments on an earlier draft.
1
Communication No. 930/2000 (16 August 2001) UN Doc. CCPR/C/72/D/930/2000,
available at http://www.unhchr.ch.
226
for all three applicants. The Committee’s decision is significant for it marks
a substantial shift in how human rights considerations impact upon the
traditionally wide margin of discretion given to States in determining who is
able to enter and legally reside in their territory. International practice prior
to the Committee’s decision demonstrated that individuals did not have a
right to choose where they wished to live and that States were able to remove
foreign nationals who were illegally resident in the State territory, even if the
removal impacted upon the enjoyment of family life.
This article will examine the Committee’s views in Winata comparing
them to established international practice where rights concerning family
life are weighed up against the ability of a State to remove individuals
from its territory in pursuance of immigration control. In the field of
immigration control, when family rights are invoked there exists a
tension between the ability of a State to control entry and residence and
respect for human rights. The Committee’s decision in this particular
case is significant for it clearly gives greater prominence to the rights of
the individual over the ability of the State to control the entry and
residency of foreign nationals.
2. FACTS OF THE APPLICATION
2
Hendrick Winata and So Lan Li were both born in Indonesia and entered
Australia in August 1985 and February 1987, respectively, on temporary
visas. The visas expired in September 1985 for Winata and in June 1988 for
Li, and from these dates they were living in Australia illegally. In Australia
they commenced a relationship that is de facto akin to marriage. Their son
Barry was born in Australia on 2 June 1988 and acquired Australian
citizenship on 2 June 1998 by virtue of being born in Australia and residing
there for ten years. On 3 June 1998 Mr. Winata and Ms. Li applied for
protection visas to stay in Australia on the basis that they would face
persecution in Indonesia due to their Chinese ethnicity and Catholic
religion. The Department of Immigration and Multicultural Affairs refused
their application and the Refugee Review Tribunal affirmed this decision
in January 2000. The Refugee Review Tribunal only examined the
possibility of Mr. Winata and Ms. Li facing persecution in Indonesia and
did not consider the impact the removal would have on family rights as this
issue was outside the jurisdiction of the tribunal. Winata and Li chose not
to seek judicial review of this decision since any chance of success was
considered to be remote. They did apply, in March 2000, to the Minister
for Immigration and Multicultural Affairs requesting the Minister to
exercise a non-enforceable discretion allowing them to stay in Australia,
based on compelling and compassionate grounds. The Minister refused to
Richard Burchill
2
Ibidem, paras. 2.1-2.6.
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