Nystrom v Australia

Parties (including notable third parties)

Stefan Lars Nystrom (Applicant); Australia (Respondent)

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Summary of Facts

The subject matter was the deportation of the Applicant from his country of residence, Australia.

The Applicant’s mother married in Sweden and in 1966 the couple migrated to Australia. The Applicant’s mother gave birth to the Applicant while visiting family in Sweden, before returning to Australia, arriving on 27 January 1974 when the Applicant was 25 days old. The Applicant entered Australia on a Swedish passport.

The Applicant then remained in Australia, holding a Transitional (Permanent) Visa. His parents separated when he was 5 years old, after which he then had little contact with his father. He maintained close ties with his mother and sister but had few ties with Sweden. He held a driver’s licence and a government healthcare card and received unemployment benefits and paid his taxes.

The Applicant had a substantial criminal record and drinking problem from a young age. At age 13, he was committed to the care of the State but at the time of his deportation, he had no outstanding sentences or punishments and had learned to control his drinking problem.

The Applicant’s visa was cancelled in 2004 on the basis that he failed to meet a relevant character test due to his criminal record, and he was arrested and held in detention for 8 months. He was released in 2005 after the Full Federal Court of Australia overturned the visa cancellation, primarily because he was an absorbed member of the Australian community with no relevant ties elsewhere. While he then started working and found some stability in his life, in late 2006 the High Court of Australia ruled that his visa should be cancelled and he should be deported. After his subsequent arrest, he was held in solitary confinement as a ‘high risk’ detainee. Prior to his deportation, Swedish authorities requested that he not be deported, based on humanitarian grounds.

The Applicant thought he was an Australian national until the possibility of his visa being cancelled was raised in 2003.

When the Applicant arrived in Sweden, he was unprepared for life in that country but received unemployment benefits and temporarily lived with relatives. The Applicant’s family was ‘irreparably and indefinitely disrupted’, with the Applicant’ mother and sister unable to visit him in Sweden due to financial constraints. The Applicant ultimately returned to alcohol abuse.

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Legal Arguments

Legal Arguments by the Applicant

The Applicant claimed that in deporting him to Sweden, the Respondent had violated a range of his rights under the International Covenant on Civil and Political Rights (‘ICCPR’). He also claimed his mother and sister were victims of violations of the ICCPR.

Article 12(4) – arbitrary deprivation of right to enter own country

The Applicant alleged that by cancelling his visa leading to his deportation, the Respondent had breached his right to enter his own country. Referring to previous views of the Committee, he argued the concept of ‘his own country’ is broader than the concept of ‘country of his nationality’. In particular, a formal link to a state is irrelevant. Rather, Article 12(4) is concerned with the strong personal and emotional links an individual may have with the territory where they live and the related social circumstances. He had lived all his life in Australia and considered it his own country. The issuance in 1984 of an Absorbed Person Visa meant that the Respondent had accepted that he had ceased to be an immigrant by reason of his absorption into the Australian community. On his criminal record, the delay since the commission of his most serious offences and that only moderate weight was given to the risk of him reoffending suggested that this was not a major factor in the decision. Therefore, the decision was arbitrary and in contravention of Article 12 (4).

The Applicant further submitted that he had been unaware he was not an Australian national and the Respondent had invited his parents to become nationals without referring to their children. Further, when he was placed under the care of the State at age 13, if the State had sought it on his behalf, he would have eligible for citizenship.

Articles 17 and 23(1) – right to protection of the law against interference with family and home; protection of the family as the natural and fundamental group unit of society

The Applicant contended there had been arbitrary interference with his family life and home by way of the requirement that he leave Australia while his mother and sister remained. He cited previous views of the Committee to argue that: it did not matter that his mother and sister could visit him and despite that, there was still an interference; home is the place where a person resides or carries out his usual occupation, with the fact he is not a national being irrelevant; the test of arbitrariness required consideration of the Respondent’s reasons and the family hardship resulting.

The Applicant further argued that ‘home’ should be a person’s immediate community, while accepting that it is not the whole of Australia. He also stated that the family interference he asserted was arbitrary not unlawful e.g. the Respondent had not appropriately balanced the reasons for deportation with the resulting family hardship.

Article 9(1) – rights related to arrest and detention

The Applicant argued he was provided with no justification for his detention during the course of his legal appeals or in preparation for his deportation and the process was therefore arbitrary. He further argued that he was not a flight risk and had not entered Australia illegally or done anything dishonest or fraudulent toward visa or citizenship status.

Legal Arguments by the Respondent

Article 12(4) – arbitrary deprivation of right to enter own country

The Respondent argued that the Applicant’s claims were inadmissible for failure to substantiate, with him not being a national of Australia for purposes of the ICCPR and subject therefore to domestic rules that apply to non-nationals. Without a visa, he did not lawfully reside in Australia. On the merits, the Respondent sought to distinguish previous views of the Committee and relied on the applicant having nationality, being Swedish, which has never lapsed and therefore he is not stateless. Rather, his ‘own country’ is Sweden only.

Articles 17 and 23(1) – right to protection of the law against interference with family and home; protection of the family as the natural and fundamental group unit of society

The Respondent argued that the applicable obligations were duly considered as part of the decision to cancel the Applicant’s visa, including in respect of his mother and sister. The key point was the impact of a state’s right to control the entry, residence and expulsion of aliens. Further, citing previous Committee views, the Respondent argued that ‘home’ for Article 17 is not the whole country but, typically, a dwelling house. On Article 23(1), the Respondent agreed that it had interfered with the applicant’s family life, but it contended that this was not unlawful or arbitrary, and that its position is consistent with previous views of the Committee. Further, the applicable law provided for removal from the country of a person with a substantial criminal record who is not an Australian national and that is consistent with the Covenant. Finally, the interference was weighed against other factors e.g. protection of the community and was outweighed by those other factors. Such a balancing approach was consistent with previous Committee views.

Article 9(1) – rights related to arrest and detention

The Respondent argued that the Applicant was properly detained following a lawful revocation of his visa on character grounds under applicable legislation and therefore the detention was not arbitrary. Consistent with this, he was promptly released after the decision of the Full Federal Court of Australia and was not then detained again until after the decision of the High Court of Australia. In light of his criminal and alcohol histories, he could not be relied on to present for deportation. Finally, the visa cancellation followed consideration of the Applicant’s family relationships in Australia and lack of ties in Sweden, but that had to be weighed against the risks that he presented to the community, despite his efforts to reform his behaviour and the length of time since his last conviction in 2002.

Outcome

Article 12(4) – arbitrary deprivation of right to enter own country

The majority of the Committee initially considered the ‘his own country’ requirement, viewing the concept as being broader than ‘country of his nationality’ and inviting consideration of matters such as longstanding residence, close personal and family ties and intentions to remain, as well as the absence of such ties elsewhere. It considered Australia to be the Applicant’s own country because of his strong ties to Australia, his family being in Australia, his language, the duration of his stay, any his lack of ties with Sweden aside from nationality. Moving to arbitrariness and deportation, the Committee noted that any interference provided for by law should still comply with the provisions, aims and objectives of the ICCPR and considered that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. The Committee considered the deportation to be arbitrary and in breach of Article 12(4), particularly in view of the period that had passed since the Applicant’s serious convictions and at a time when he was in a process of rehabilitation.

Articles 17 and 23(1) – right to protection of the law against interference with family and home, protection of the family as the natural and fundamental group unit of society

The Committee noted its previous views on the concept of family being interpreted broadly and that expulsion of a person could be an arbitrary interference with family, where separation from the family and its effects on the person were disproportionate to the objectives of the removal. There being a clear interference in the present circumstances, and it being lawful, the issue is whether it was arbitrary. The Committee considered the irreparable consequences of deportation were disproportionate to the legitimate aim of preventing further crimes, especially given the lapse of time between the commission of offences by the Applicant that the Respondent took into account and the deportation, with the result that there had been an arbitrary interference with family in relation to the Applicant. However, the Committee did not consider that to be the case for his mother and sister, who were not uprooted from their family life environment.

Article 9(1) – rights related to arrest and detention

The Committee found no violation, noting the Respondent’s position that detention pending deportation was lawful and reasonable and derived directly from the visa cancellation. On the relevant element of proportionality, the Committee was satisfied with the imprisonment in light of the visa cancellation decision, concerns that the applicant might harm detention centre inmates and staff, and his being seen as a flight risk. In conclusion, the Committee was of the view the deportation of the Applicant violated his rights under Articles 12 (4), 17 and 23 (1) of the ICCPR. It followed that under Article 2 (3(a)) of the ICCPR, the respondent was obliged to provide an effective remedy, including allowing him to return and materially facilitating his return to Australia.

1^st dissenting view of the Committee

On Article 12(4), the dissenting view was that it should not be extended to non-nationals. Doing so would give rise to dangers: first, that it could vastly increase the number of non-nationals a state could not deport and extend to them a de facto second nationality; second, that it could dilute the protection Article 12(4) affords to nationals i.e. effectively devaluing the nationality aspect and leaving only the arbitrariness aspect.

On Articles 17 and 23(1), the dissenting view was that deportation was not disproportionate to the interference with family life in the circumstances, in light of the Applicant’s criminal record and that the Committee had in previous views given more weight to the interests of states in preventing crimes. Further, the lack of ties with Sweden was seen to be less the case in fact than claimed by the applicant. Finally, on the delay aspect, the concern was that if delay is to cause the right of deportation to be lost, that may discourage states from giving persons time to demonstrate rehabilitation

2^nd dissenting view of the Committee

On Article 12(4), the dissenting view was said to be generally for the same reasons as stated the 1^st dissenting view. Further, it was considered significant that the Applicant had an existing nationality, being Swedish, as opposed to previous cases where a person has no other nationality and therefore own country may be extended to them despite them not being a national of the country.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	International Covenant on Civil and Political Rights 1966	Articles 2 (paragraphs 1 and 3(a)), 9 (paragraph 1), 12 (paragraphs 3 and 4), 13, 14 (paragraph 7), 17, 23 (paragraph 1), 24 (paragraph 3), 26, 28
International	Optional Protocol to the International Covenant on Civil and Political Rights 1966	Articles 2, 5 (paragraphs 1, 2(a), 2(b) and 4)
Domestic	Migration Act 1958 (Cth)	Sections 5, 189, 196, 198, 199, 200, 501
Domestic	Ministerial Direction No. 21

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Devon Whittle, ‘Nystrom v Australia’ (2012) 19 Australian International Law Journal 235

• The author states that the Committee expanded the scope of Article 12(4), finding that it could apply to non-nationals where they had sufficient ties to a country, which significantly weakened the nexus previously required by the Committee between Article 12(4) and nationality.
• The author identifies the following issues with the majority view of the Commission: (1) they did not set down the extent to which they relied on the failure of the Respondent to begin the citizenship application process for the Applicant when he was under State guardianship (i.e. absent that factor, would they have reached the same view based on the other factors?);  and (2) they did not clarify the interaction between Article 12(4) and Articles 17 and 23 (i.e. had deportation been reasonable under Articles 17 and 23, could ‘family life’ still be a sufficient factor to support an ‘own country’ claim under Article 12(4)?).
• As a result of the above, the author identifies several potential consequences:  (a) that the focus for arbitrariness on the period between the criminal acts and the deportation could result in states not giving persons a chance to demonstrate rehabilitation because consequential delays may be a bar to deportation; (b) that the attention on the Applicant’s treatment may discourage states from such equitable treatment rather than risk Article 12 (4) applying; and(c) that the risk that the stringent standard for arbitrariness formulated for nationals may be weakened when applied to aliens as well as nationals
• The author concludes that cases such as this which involve clear, ongoing connections to the resident states and no connection with the state of nationality may be no more than gradual broadening of Article 12 (4) to cater for unique factual circumstances, rather than radical changes.

Michelle Foster and Helene Lambert, ‘Statelessness as a Human Rights Issue: A Concept Whose Time Has Come’(2016) 28(4) International Journal of Refugee Law 564

• The authors cite the case in a discussion of the ‘right to remain’, which they describe as the ultimate hallmark of citizenship, and which has been extended beyond formal citizenship in a manner that may have particular relevance to stateless persons.
• In the context of Article 12 (4), they note that the Committee relied on ‘the strong ties connecting him to Australia’. While the Applicant was not stateless, the authors state that a similarly close connection would strengthen a claim for Article 12(4) to apply in a case of statelessness.

Caia Vlieks, Ernst Hirsch Ballin & Maria Jose Recalde Vela, ‘Solving Statelessness: Interpreting the Right to Nationality’ (2017) 35 Neth Q Hum Rts 158

• The authors cite the case in a discussion of statelessness. They state that ‘the concept of one’s “own country” and the accompanying rights present a clear marker of a solution to statelessness that goes beyond the acquisition of nationality’ (page 169).

Timothy E. Lynch, ‘The Right to Remain’ (2022) 31(3) Washington International Law Journal 315.

• The author discusses the idea that a person’s ‘own country’ is a broader concept than country of nationality. Referring to other jurisprudence from the Committee, the author suggests that Article 12(4) prohibits the deportation of non-citizen long-term residents, except in extremely limited circumstances.