Violation of rights of non-citizens and protection of families

Philip Lynch
Federal

In a landmark case brought by the HRLC, 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 process of rehabilitation’. Mr Nystrom’s mental health deteriorated significantly following 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.

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.’

In its judgment, the Committee said that Australia now has a legal obligation to allow and support Mr Nystrom to return home. Justice Evatt said that ‘As a country which takes its international human rights obligations seriously, Australia 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”.’

PHIL LYNCH is Executive Director of the Human Rights 
Law Centre.

(2011) 36(4) AltLJ 279
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