UN finds Australia violated international law in landmark case on rights of non-citizens and protection of families
6 September 2011
In a landmark decision, the United Nations Human Rights Committee has held that Australia violated the human rights of a permanent resident, and breached its international legal obligations, by cancelling his visa and deporting him to Sweden.
Stefan Nystrom was deported from Australia on 29 December 2006 after the government cancelled his visa on the grounds of his criminal record. Mr Nystrom was born in Sweden but arrived in Australia aged 27 days. Until his deportation at the age of 32, he had never left the country.
In a 25 page judgment, the Committee held that the deportation of Mr Nystrom (“an absorbed member of the Australian community” whose mother, sister and nuclear family all live in Australia) to Sweden (a country where he does not speak the language and “to which he has no ties apart from nationality” in the formal sense) breached the International Covenant on Civil and Political Rights.
By a majority of 13 to 2, the Committee found that Mr Nystrom’s deportation was arbitrary and had “irreparable consequences”. Before his deportation, Mr Nystrom was in a “in a process of rehabilitation”. According to Rachel Ball of the Human Rights Law Centre, who brought the complaint on behalf of Mr Nystrom, “Stefan’s mental health has deteriorated significantly since his deportation, requiring admission to a psychiatric facility.”
The Committee also found that Mr Nystrom’s deportation “led to a complete disruption of his family ties” in breach of Australia’s obligation to protect families. According to Ms Ball, “Stefan’s mother, Britt, and his sister, Annette, love and miss him greatly. They’re gravely concerned for his welfare.” In its reasons the Committee said that their indefinite separation from Mr Nystrom “has caused great emotional distress”.
By a majority of 10 to 5, the Committee also held that Australia arbitrarily deprived Mr Nystrom of “his right to enter his own country”. This is the first time that an international court or tribunal has found that the right of a person to freely enter his or her “own country” applies not just to citizens but to non-nationals with “special ties” to that country. According to leading international jurist Elizabeth Evatt AC, a former Australian judge and herself an ex-member of the Human Rights Committee, “This decision is highly significant. It establishes that in certain circumstances a person may be able to claim protection against arbitrary deportation by a state even though not a citizen of that state.” Justice Evatt said that “Under the ruling, the right to protection may arise as a result of long-standing and strong personal and family ties to that country, together with the absence of such ties elsewhere.”
Leading barrister Brian Walters SC, who acted pro bono in the case with the Human Rights Law Centre, said that there were a number of factors that made Mr Nystrom’s deportation particularly arbitrary. “Stefan was made a ward of the state aged 13. As his guardian, the state failed to notify him that he was not an Australian citizen or to obtain citizenship for him.” Mr Walters also said that “the Committee was critical of the inexplicable delay of seven years between when Mr Nystrom was last convicted of a serious offence and when the Minister decided to cancel his visa.”
In its judgment, the Committee said that Australia now has a legal obligation to allow and support Mr Nystrom to return home. According to Ms Ball, “The Human Rights Committee is an eminent body of independent international human rights experts.” She said that “Australia claims to be committed to human rights and the rule of law and has submitted to the jurisdiction of the Committee. As such, the government has both an international legal obligation, and a domestic policy duty, to give effect to the Committee’s judgment and bring Stefan home.” Justice Evatt similarly said that “As a country which takes its international human rights obligations seriously, Australian should respect and implement this decision.” She noted that “Australia is obliged to respond to the decision within six months.”
The expert body also recommended that the government review the operation of the Migration Act to ensure that Australia does not expose other persons to similar human rights violations. According to Mr Walters SC, “Australia has both a legal and moral duty not to deport people in these circumstances.” Mr Walters said that Australia’s practice of doing so could damage international relations, noting that “Sweden had requested that Australia not deport Mr Nystrom ‘on humanitarian grounds’.”
For further information or comments, please contact:
Rachel Ball, Human Rights Law Centre – (03) 8636 4433 or 0434 045 919
Brian Walters SC, Victorian Bar – 0411 020 967