Mr OA, Miss OB and Master OC v Commonwealth of Australia (Department of Home Affairs)

As a result of the inquiry, I find that the following acts of the Commonwealth are inconsistent with, or contrary to, articles 9(1), 17(1) and 23(1) of the ICCPR and articles 3(1) and 16(1) of the CRC: • the failure of the Department to refer the case to the Minister in order to assess whether to exercise his discretionary powers under section 195A of the Migration Act 1958 (Cth) (Migration Act) p. [...] I find that the Department’s delays 23 and failures to act in relation to Mr OA’s detention were ‘arbitrary’, contrary to article 9(1) of the ICCPR: • the failure of the Department to refer the case to the Minister in order to assess whether to exercise his discretionary powers under section 195A prior to 5 October 2018, or again in the following 3 years • the failure of the Department to refer th. [...] At a similar time to their assessment of Mr OA against the section 195A guidelines in July 2018, the Department also found Mr OA to meet the section 46A guidelines for referral to the Minister to consider lifting the bar to allow him to lodge an application for a TPV or SHEV. [...] The submission referred the individuals to the Minister to consider under section 46A of the Act, and included sections 46B, 48B and 91L of the Act, as applicable to the individual circumstances of all applicants included in the submission. [...] It follows that the prohibition against arbitrary interference with family incorporates notions of reasonableness.28 In relation to the meaning of reasonableness, the UN HR Committee stated in Toonen v Australia: The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any.