Bakhtiyari v Australia Nicole and Clare

What the case entailed Mr Bakhityari entered Australia illegally from Pakistan arriving on a boat, and was given a refugee status/visa, he was granted to live in Australia. In 2002, his wife and two children also came to Australia illegally by boat and was refused for a refugee visa, therefore leading to their detainment. Mr Bakhityari’s visa was then withdrawn, as it was discovered that he had lied in his application which he used to apply for a visa. They family was then deported back to Pakistan.

Which human rights have been violated and how? The human rights that were violated during the Bakhtiyari v Australia (2003) case were the rights of the two children. They were detained in an immigration detention centre with their mother because they were refused refugee status. For two years the children were detained with their mother and during this time they had their psychological health deteriorate and they were also self-mutilating themselves due to this imprisonment. The articles 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.”

And 9(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” These laws were not applied to these children as they were detained with their mother and got the same treatment as she did. The health of these children were well documented and yet their was no action taken, which then violated article 24(1) “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.”

What could have been done to stop or prevent these violations? These violations to the Bakhtiyari children could have been prevented if the law had moved this case along faster, to prevent the rights been abused. The deteriorating health of the children could have easily been prevented and there is valid proof within the documents that were kept and to have prevent this, there could have been more psychological treatment during the duration of the imprisonment and proper treatments were provided. The children should not had had equal treatment to their mother, and that could have been prevented if they were in a different, more suitable place, best for their health and safety.

Effectiveness of the Legal System in recognising and enforcing these human rights (Domestic and International) The legal system in this instance, hasn’t been particularly effective in recognising and enforcing these human rights. Firstly, the children in this case, were detained with their mother, for a period of over two years, thus, directly breaking articles 9(1) and 9(4) of the International Convention of human rights. As a consequence, the children’s physiological health deteriorated, and they resorted to self-mutilation. This showed the legal system at a domestic level, as ineffective, especially as children were at risk. There are international conventions in place for a reason, but domestic legislative channels have somehow not complied.

Another way in which the legal system has proved ineffective, is the obvious language barrier and subsequent lack of access to the Australian legal system. Resources were also not used efficiently, as the process took years, and money was spent, keeping the family in detention and as they used the legal system. As each case occurs under different circumstances, the outcome, in this case deportation, is not constant across the board. Also, as these people were from Afghanistan and Pakistan possible biased behaviour may have occurred, as these places are renowned for terrorist activities, and the prime-minister of the time had some controversial attitudes towards immigrants. Overall, the legal system, at both a domestic and to some extent international level proved inefficient, a waste of time, a waste of money, and mistreatment of asylum seekers and innocent children.

Sources That Were Used akhtiyari 9_2002.php