Advance unedited version CCPR/C/133/D/3212/2018 with the author’s family, within the meaning of article 17 of the Covenant, which has not been contested by the State party. The Committee has therefore to determine whether such interference in the author’s family life is arbitrary or unlawful pursuant to article 17 (1) of the Covenant, and thus whether insufficient protection has been afforded to his family by the State in accordance with article 23 (1) of the Covenant. 9.4 The Committee recalls its jurisprudence that it is certainly unobjectionable under the Covenant that a State party may require, under its laws, the departure of persons who remain in its territory beyond limited duration permits. Nor is the fact that a child is born, or that by operation of law such a child receives citizenship either at birth or at a later time, sufficient of itself to make a proposed deportation of one or both parents arbitrary. Accordingly, there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances.13 The Committee recalls that the notion of arbitrariness includes elements of inappropriateness, injustice, lack of predictability and due process of law, 14 as well as elements of reasonableness, necessity and proportionality.15 The Committee also recalls that, in cases in which one part of a family must leave the territory of the State party while the other part would be entitled to remain, the relevant criteria for assessing whether the specific interference with family life can be objectively justified must be considered, on the one hand, in the light of the significance of the State party’s reasons for the removal of the person concerned and, on the other hand, of the degree of hardship the family and its members would encounter as a consequence of such removal.16 9.5 In the present case, the Committee observes that the author’s removal pursued a legitimate objective, which is the enforcement of the State party’s immigration laws. It notes, however, that it remains uncontested by the State party that after the author’s protection visa application was refused (by a decision of January 2013, later confirmed by several court decisions up to the High Court of Australia decision of October 2017), there have been some important changes in the author’s circumstances, namely his marriage (in September 2016), the birth of his daughter (in September 2017) and later, the granting of a Safe Haven Enterprise visa to his family members (in July 2018). Therefore, the only remedy available to the author, in which he could bring these new circumstances to the attention of the authorities and his ensuing claims, was to submit a request for Ministerial intervention (para 2.9). The Committee notes, however, that the refusal letters by the Department of Immigration and Border Protection contain no specific reasons for the decision not to refer the author’s requests to the Minister but only a general remark to the fact that his claims did not meet the requirements under the guidelines for Ministerial intervention. The Committee finds the lack of reasoning in those decisions to be of particular concern in view of the fact that the State party has indeed acknowledged that family reunification in the author’s case is not possible neither in Australia nor in Sri Lanka in the foreseeable future, having regard to the operation of Australia’s immigration laws, combined with the State party’s recognition that the author’s wife is unable to safely return to Sri Lanka in the immediate future (para 4.4).17 The Committee further notes the absence of any additional explanation regarding the reasonableness, necessity and proportionality of the measure of the author’s removal taken by the State party, besides a general reference to the fact the interference with the author’s right to family is lawful and non-arbitrary solely because it was taken in accordance with Australia’s immigration laws in pursuit of the legitimate aim of managing Australia’s borders and its humanitarian and migration programs. In view of the foregoing the Committee considers that there does not appear to have been an individual assessment of the author’s claims, in particular regarding the reasonableness, necessity and proportionality between the means employed and the alleged legitimate aims sought. 13 14 15 16 17 Winata v. Australia (CCPR/C/72/D/930/2000), para. 7.3 See Ilyasov v. Kazakhstan (CCPR/C/111/D/2009/2010), para. 7.4. See general comment No. 35 (2014) on liberty and security of person, para. 12. See Madafferi v. Australia, para. 9.8; and D.T. v. Canada (CCPR/C/117/D/2081/2011), para. 7.6.; Noureddine Maalem and Guldez Maalem v. Uzbekistan (CCPR/C/123/D/2371/2014), para. 11.4. In contrast, see e.g. B.D.K. v. Canada (CCPR/C/125/D/3041/2017), para 8. 7