Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011) Summary
On 18 August 2011 the United Nation’s Human Rights Committee published its View adopted in the Communication (Communication No. 1557/2007) submitted by Stefan Lars Nystrom.
In this landmark decision the Committee found that Australia had violated article 12(4) (the right to enter his own country), and articles 17 and 23(1) (protection from arbitrary interference with his family life) of the International Covenant on Civil and Political Rights.
The watershed decision is a significant one – not only for Mr Nystrom who, the Committee held, should be allowed to return to his home country, Australia – but also more generally for the development of the Committee’s jurisprudence on non-citizens and the protection of families. Perhaps most significantly, this is the first time the Committee has found that the right of a person to freely enter his or her ‘own country’ applies to non-citizens.
Mr Nystrom was born in Sweden, while his mother was visiting family members (his mother was a permanent resident of Australia). When he was 25 days old he travelled to Australia, where he had lived since he was 27 days old, holding a Transitional (Permanent) Visa.
Mr Nystrom lived all his life in Australia with his mother and sister, and thought that he was an Australian citizen. He had no close ties to Sweden; he had not learnt the language, and had no direct contact with his aunts, uncles and cousins there.
Mr Nystrom had a substantial criminal record, and was convicted of a number of serious offences, including aggravated rape when he was 16-years old. He was prosecuted for each of these offences under the Australian criminal justice system.
On 12 August 2004 the (then) Minister for Immigration and Citizenship cancelled Mr Nystrom’s Transitional (Permanent) Visa on the basis that he no longer satisfied the character test specified in section 501(6) of the Migration Act 1958 (Cth). Mr Nystrom’s application for judicial review of the decision to cancel his visa was allowed by the Full Federal Court, which ruled that “it is one thing to say that the responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies with the discretion of the responsible minister. That has little to do with the permanent banishment of an absorbed member of the Australian community with no relevant ties elsewhere”.
The decision of the Full Federal Court was subsequently overturned by the High Court of Australia. With no further avenues for domestic redress Mr Nystrom submitted a Communication to Committee, with the assistance of the Human Rights Law Centre.
An application for interim measures to prevent his expulsion to Sweden was rejected by the Committee in late December 2006, and Mr. Nystrom was deported – in quite extraordinary circumstances (see [2.7] – [2.8]) – on 29 December 2006.
Mr Nystrom submitted that Australia had violated its international legal obligations under the Covenant by canceling his visa and deporting him to Sweden. Specifically, Mr Nystrom alleged that Australia had violated articles 9(1), 12(4), 14(7), 17, 23(1) and 26 of the Covenant, as well as article 2(1) read in conjunction with article 14(7), 17 and 23(1). Further, Mr Nystrom submitted that Australia had violated his mother and sister’s rights under articles 17 and 23(1) of the Covenant.
As noted above, the Committee held that there had been a violation of articles 12(4), 17 and 23(1) in respect of Mr Nystrom. The Committee considered that the claim under article 14(7) was inadmissible (for failure to substantiate); that the claim under article 9(1) failed on its merits; and that it was unnecessary to consider the claims under article 26 or article 2(1). The Committee also considered that the claims of the mother and sister failed on their merits.
The Committee’s decision on article 12(4) – which protects the right to enter one’s own country – is a particularly important one; unequivocally establishing that an individual may be able to claim protection against arbitrary deportation by a state party even though he or she is not a citizen of that state.
The Committee considered that the threshold question was whether Australia was, indeed, Mr. Nystrom’s “own country”. It held that “there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality” (at [7.4]). The Committee considered that Australia was Mr Nystrom’s “own country”, “in the light of the strong ties connecting him to Australia, the presence of his family in Australia, the language he speaks, the duration of his stay in the country and the lack of any other ties than nationality with Sweden”.
The Committee went on to consider the alleged arbitrariness of the author’s deportation. The Committee noted that “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable”.
The Committee’s liberal (and entirely appropriate) interpretation of “own country”, together with its suggestion that there are likely to be no circumstances in which expulsion from such country can be anything other than arbitrary, will no doubt resonate far beyond the case of Mr Nystrom.
Articles 17 and 23(1)
The Committee (again, entirely appropriately) considered that the decision of the Australian government to deport an individual who had lived all of his life in Australia, leaving behind his mother, sister and nephews, amounted to an “interference” with the family.
Although the deportation was lawful under the Migration Act 1958, the Committee considered that it was nonetheless arbitrary, and therefore amounted to a violation of articles 17 and 23(1). In undertaking the balancing exercise required to assess the arbitrariness of the decision, the Committee acknowledged the significance of Mr Nystrom’s criminal record, and the Australian government’s stated desire to protect its other residents. However, on balance, the Committee considered that “the Minister’s decision to deport [Mr Nystrom] had irreparable consequences…which [were] disproportionate to the legitimate aim of preventing commission of further crimes, especially given the important lapse of time [9 years] between the commission of offences considered by the Minister and the deportation”.
The Committee held that, as a party to the Optional Protocol to the Covenant, Australia was bound to provide Mr Nystrom with an effective remedy. In the Committee’s view, this would include “allowing the author to return and materially facilitating his return to Australia”. Significantly, the Committee also held that Australia “was under an obligation to avoid exposing others to similar risks of a violation in the future”.
The Human Rights Law Centre should be congratulated for its brilliant advocacy in this case over the past five years. No doubt this advocacy will continue over the coming months. As the Committee’s decision is not domestically binding, Mr Nystrom’s fate now lies in the hands of the Australian government. In light of the government’s recent attitude towards its international obligations (in the refugee context), it seems likely that Mr Nystrom’s battle is not yet over, and it may be some time before he is permitted to return to his own country, and be reunited with his family.
Jason Pobjoy is a PhD candidate at Cambridge University.