CCPR/C/133/D/3212/2018 Advance unedited version
(para 2.10). The Committee further notes that the author’s complaint was submitted on 16
July 2018 and that on 17 July 2018 the Committee requested the State party to refrain from
deporting the author to Sri Lanka while his case was under consideration (para 1.2). The
Committee, on the other hand, also takes note of the information provided by the State party,
on 3 August 2018, that the author’s deportation had already taken place at 11.15 am
(Australian Eastern Standard Time) on 17 July 2018, prior to the time of notification of the
Committee’s request for interim measures (6.58 pm on the same day) and therefore it could
not implement the Committee’s request for interim measures (para 1.2). In this regard, the
Committee notes the State party does not contest that it had been informed by the author of
the present communication of his request for interim measures (paras 5.4, 6.2), before the
Committee’s decision on this request. While observing that a request for interim measures
can have no effect until such time as a formal decision relating to it has been issued by the
Committee, the Committee considers that it would be desirable for States parties to take all
possible measures to halt deportations in such exceptional circumstances until a decision is
reached by the Committee. In the present case, however, although the Committee regrets the
course of events, it is unable to conclude that the State party breached its obligations under
the Optional Protocol by not respecting the request for interim measures and deporting the
author before the Committee issued its decision on this request.
Consideration of admissibility
8.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
8.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
8.3
The Committee notes the author’s claim that he has exhausted all effective domestic
remedies available to him. In the absence of any objection by the State party in that
connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional
Protocol have been met.
8.4
Furthermore, the Committee notes that the author, in his comments dated 1 November
2019, has withdrawn his allegations of a violation of article 7 of the Covenant. Accordingly,
the Committee will not examine this part of the author’s communication.
8.5
In the absence of any other challenges to the admissibility of the communication, the
Committee declares the communication admissible insofar as it concerns the author’s claims
under article 17 in conjunction with article 23 (1) of the Covenant, and proceeds with its
consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, as required under article 5 (1) of the Optional Protocol.
9.2
The Committee observes, and both the author (para 3.2) and the State party agree (para
4.4), that to separate the author from his wife and their child may indeed give rise to issues
under article 17, read in conjunction with article 23 (1), of the Covenant. The Committee
reiterates its jurisprudence according to which there may be cases in which a State party’s
refusal to allow one member of the family to remain in its territory would involve interference
in that person’s family life. However, the mere fact that one member of the family is entitled
to remain in the territory of a State party does not necessarily mean that requiring other
members of the family to leave involves such interference. 12
9.3
In the present case, the Committee considers that to issue a deportation order against
the author but not his wife and their minor child constitutes, as referred to earlier, interference
12
6
See e.g. Byahuranga v. Denmark (CCPR/C/82/D/1222/2003), para. 11.5; Winata v. Australia
(CCPR/C/72/D/930/2000), para. 7.1; Madafferi v. Australia (CCPR/C/81/D/1011/2001), para. 9.7;
and Noureddine Maalem and Guldez Maalem v. Uzbekistan (CCPR/C/123/D/2371/2014), para. 11.2