Government defies UN directive to return deported man to Australia

Australia is flagrantly violating its international human rights obligations and undermining the rule of law by refusing to abide by a decision of the United Nations Human Rights Committee – the world’s highest expert human rights body. In the landmark decision of Nystrom v Australia issued in September 2011, the Committee held that Australia violated the human rights of a permanent resident, Stefan Nystrom, by deporting him to Sweden. Australia was given six months to abide by international law and to support Mr Nystrom to return home.

However, in a stunning rebuke, the Australian Government has now advised the Committee that it “respectfully disagrees” with the decision and will not allow Mr Nystrom to re-enter the country. This is despite the fact that Mr Nystrom was just 27 days old when he arrived in Australia and, until his deportation at the age of 32, had never left. His mother, sister and all his family are Australians and live in Australia. He has no meaningful ties with Sweden whatsoever and does not even speak the language.

The Human Rights Law Centre’s Rachel Ball said the Australian Government was undermining the UN human rights system with a flagrant breach of its international human rights obligations.

“If the Government is serious about human rights, it needs to stop picking and choosing which laws it will abide by and which it will ignore. Australia’s mounting track record of rejecting the decisions of UN treaty bodies lays us open to the charge of speaking with a forked tongue on human rights. It throws into doubt Australia’s intention to abide by various human rights treaties that the Government has signed,” said Ms Ball

The Government’s brazen decision is also completely at odds with the UN Security Council candidacy which pitches Australia as a country which ‘does what we say’.

“We’re either committed to international human rights and the rule of law or we’re not. Whether it’s the rights of women, people with disability, or prisoners – the Australian Government needs to respect its legal obligations and heed the clear direction of the world’s highest expert human rights body,” said Ms Ball.

According to leading barrister Brian Walters SC, who acted pro bono for Mr Nystrom together with the Human Rights Law Centre, the Government’s decision could damage international relations, noting that Sweden requested that Australia not deport Mr Nystrom on humanitarian grounds.

“Australia’s reputation as a country which supports the United Nations human rights system is being diminished. This response from the Australian Government sends a terrible message to the world about Australia's attitude to human rights,” said Mr Walters.

Mr Walters said the Government was refusing to play by the human rights rules – rules that under former Labor Minister Doc Evatt, Australia played a leading role in establishing.

“The Human Rights Committee is an eminent body of independent international human rights experts. Quite rightly, Australia has submitted to the jurisdiction of that Committee. Now it should do the right thing, abide by international law, give effect to the Committee’s judgment, and bring Stefan home,” said Mr Walters.

For further information contact: Rachel Ball on 0434 045 919 or via rachel.ball@hrlc.org.au

Background

Stefan Nystrom was deported from Australia in 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. Following his deportation, he lodged a complaint with the UN Human Rights Committee alleging that his permanent removal from Australia and indefinite separation from his family violated fundamental human rights.

In a 25 page judgment issued in September 2011, 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”.

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. In its reasons the Committee said that the indefinite separation of his mother and sister 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 had 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 the Committee, there were a number of factors that made Mr Nystrom’s deportation particularly arbitrary, including that he 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. The Committee was also 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 has a legal obligation to allow and support Mr Nystrom to return home. 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.

A copy of the UN Human Rights Committee decision is here and the Australian Government response is here.

Contacts 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