Landmark case on the rights of non-citizens

By Rebecca Devitt

6 September 2011

The United Nations Human Right Committee, in a significant decision, has ruled that Australia has violated international law and the human rights of a non-citizen.  In the case Nystrom vs Australia, brought by the Human Rights Law Centre and Brian Walters SC, the Australian government had deported Stefan Nystrom in 2006 following cancellation of his visa due to a criminal record. Whilst Mr Nystom was born in Sweden he had lived in Australia since the age of 27 days and has significant personal and family ties to the country.

The UN Human Rights Committee held by a majority of 10 to 5 that the “deportation of Mr Nystrom to Sweden, a country where he does not speak the language and has no ties” breached the International Covenant on Civil and Political Rights. Article 12, paragraph 4 of the Covenant states that “no one shall be arbitrarily deprived of the right to enter his own country.” It is within this article that the Committee determined that Mr Nystrom has established that Australia is his own country.

According to the Hon. Elizabeth Evatt, a former member of the UN Human Rights Committee, the decision is highly important and is the first individual case in which the Committee has actually determined that a citizen can claim a country as his “own country.” The decision means that under certain circumstances a person may claim protection against arbitrary deportation by a state even though they are considered a non-citizen.

The UN Human Rights Committee also found that the decision by Australia to deport a person who has lived his whole life in a country leaving behind “his mother, sister and nephews, to a country where he has no ties apart from his nationality, is to be considered interference with the family.” According to the UN Human Rights Committee this is in breach of Australia’s international obligations to protect families with Mr Nystrom’s deportation leading to “irreparable consequences.”

Before his deportation, Mr. Nystrom was seeking rehabilitation and his deportation has had a significant impact on his mental state. According to Rachel Ball from the Human Rights Law Centre, since his deportation, “Stefan’s mental health has deteriorated significantly, requiring admission to a psychiatric facility” and the indefinite separation from his family has caused great “emotional stress.”

The decision means that Australia now has a legal obligation to support the return of Mr. Nystrom. According to Brian Walters SC, “Australia has both a legal and moral duty not to deport people in these circumstances.” The UN Human Rights Committee also recommended that the Australian government review the Migration Act 1958 (Cth) to ensure that serious human rights violations such as Mr.Nystrom’s do not occur.

The Human Rights Law Centre has a detailed summary of the case, which can be accessed here as well as a statement by the Hon. Elizabeth Evatt AC.

The Committee’s judgment can be found here.

Our summary of recent High Court proceedings relating to deportation can be found here.