Bakhtiyari v Australia Monique Oberdan and Ellen Panagakos

Overview In October 1999, Mr Bakhtiyari arrived in Australia from Afghanistan on a boat as an asylum seeker. He was detained in an immigration detention centre. In May 2000 Mr Bakhtiyari was granted refugee status and released into the community. In January 2001 Mrs. Bakhtiyari arrived in Australia by boat with their five children. They were detained in Woomera Immigration Detention Centre in South Australia and Mrs. Bakhtayari was refused refugee status. Mr Bakhtayari only found out that his family was in Australia in July 2001.

In December 2002, Mr Bakhtiyari's refugee visa was cancelled on the grounds that he had lied in his application for refugee status. In January 2003, the family was reunited - in the immigration detention centre. The psychological health of the children deteriorated and they self-mutilated. In June 2003 the Family Court of Australia ordered that the children be released from detention.

Human Rights In 2003 the Bakhtiyari family lodged a complaint to the Committee on the basis that the Australian Government violated the human rights of children as stated in Article 24(1) of the International Covenant on Civil and Political Rights: Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. This was a result of the Bakhtiyari children being kept in immigration detention for two years and eight months.

The United Nations Human Rights Council also found that the detention of Mrs Bakhtayari and the children for over 2 years was a violation of Article 9(1): Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. By keeping the children in detention for so long when it was well-documented that they were suffering in detention, failed to protect the rights of the Bakhtiyari children. Also Article(4): Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. As stated the UN requests to release the Bakhtiyari family from detention though the court cases requested were rejected.

Prevention According to the Convention of the Rights of the Child after Mr. Bakhtiyari was granted a permit in Sydney he should have gained full custody of his five children as soon as it became known. Closer attention should have been placed on Australia’s Human Rights in relation to children.

Effectiveness of the Legal System The legal system in this case was not effective due to the lack of resources available to Mr. & Mrs. Bakhtiyari. They were unable to access the legal system effectively with assistant from legal aid as they were in the detention centre for 2½ years . As they were immigrants from Afghanistan, they were unaware of their rights in Australia as they were from a foreign country. As an individual, the effectiveness of the law was insufficient and did not portray equality.