Mr. Brian John Lawrence Burgess v. Australia

October – 3 November 2005

The author of the communication is Brian John Lawrence Burgess, a British citizen born in England in 1952, residing in Australia from 1969 to 10 July 2000, date of his deportation from Australia to the United Kingdom. The author is represented by counsel Mauro Gagliardi and Fred John Ambrose of the International Federation of Human Rights, who submitted an authorisation from the author to act on his behalf.

By letter of 17 July 2001, the author submitted a request for interim measures to allow him to return to the State party and to avoid irreparable damage to him and his family. The request was denied by the Committee’s Special Rapporteur on New Communications on 18 July 2001.

On 17 August 2001, counsel included also the author’s wife, Jennefer Anne Burgess, an Australian citizen born in 1949, and their children Dustin, born in Australia on 29 March 1983, Luke and Malia, twins born in Australia on 27 April 1985, all still residing in Australia. However, counsel did not submit an authorisation neither from the author nor from the author’s wife and children to act on behalf of them.

Counsel claim that the members of the family are victims of violations by Australia of articles 2, 3, 5, 7, 9, 10, 12, 13, 14, 16, 17, 23, 24 and 26 of the International Covenant on Civil and Political Rights (the Covenant).

The author further alleges a violation of his Covenant rights because he considers that the decision of the Minister was arbitrary and an abuse of his discretion, as it was taken in disregard of the recommendations of the case officer who prepared the report on his case.

He claims that his deportation amounts to psychological torture, both for him, his wife and children. He argues that during the period of his sentence, he was provided with day release and week-end release, time which he spent solely with his family. During this period, his children were led to believe that this was a process of reconciliation with the family, but it was not. He also points out that he was not permitted to say a farewell to his family before his removal.

The author claims to be the victim of inequality, as expulsion orders which are not signed directly by the Minister can be appealed to the Administrative Appeals Tribunal, while he was denied such opportunity, as the Act provides that deportation orders signed by the Minister are “non-appealable”. In addition, the author claims that as a British citizen who arrived in 1969, he falls into a category, defined by the High Court in its Patterson ruling, of individuals who cannot be deported because they cannot be considered as “aliens” for the purposes of the Australian constitution and are therefore not subject to the Migration Act. The author considers that he was treated unequally compared to other individuals who arrived prior to 1973, and whose deportation orders were cancelled by the High Court for this reason.

Finally the author contends that he has been punished twice for the same offence.

On 8 June 2004, counsel informed the Committee that they had no comments on the State party’s observations.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant. The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for purposes of article 5, paragraph 2 (a), of the Optional Protocol. On the question of standing, the Committee notes the State party's contention that the communication should be declared inadmissible ratione personae with respect to Mrs. Burgess and the three children. It appears from a reading of the file that after receiving the initial submission, the Secretariat asked counsel, on 19 July 2001, in the following terms, “to provide (…) written authorisation from Mr. Burgess himself and from his family members if you also wish them to appear as victims”. On 26 July, counsel submitted an authorisation to act on behalf of Mr. Burgess only. The Committee notes that the authors’ representatives have submitted an authorisation to act on behalf of Mr. Burgess only, but that in August 2001 they included Ms. Burgess and the children in the communication without any authorisation. It further notes that counsel did not wish to comment on the State party’s observation that they had no standing to represent Mrs. Burgess and the children. There is nothing in the file before the Committee in respect of the claims brought on behalf of Mrs. Burgess and the children to show that Mrs. Burgess either authorised counsel to represent her, or that Mr. or Mrs. Burgess or their children have authorised counsel to represent the children. The Committee considers that counsel has no standing before the Committee with respect to Mrs. Burgess and Dustin, Luke and Malia Burgess and consequently declares the part of the communication alleging violations of their rights inadmissible under article 1 of the Optional Protocol. With regard to the State party’s observation that the author has failed to exhaust domestic remedies, because the author failed to appeal the decision of the Minister to cancel his visa to the Federal Court or the High Court of Australia within the statutory time lines set out in the Migration Act, and in the absence of any comments by the author on availability and the effectiveness of these remedies in this particular case, the Committee considers that the author has not exhausted these domestic remedies invoked by the State party and that the communication is accordingly inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.