Positives and Negatives of Australian Government Non-Compliance with UNHRC Nystrom v Australia 2011
In the case of Nystrom v Australia 2011,
Stefan Nystrom, a migrant who was living in Australia since he was 28 days old,
was deported following the multitude of minor offences that he had committed
whilst being a long-time resident in Australia. He was deported back to his
country of birth, Sweden, whom he is still a citizen of, although he did not
know any Swedish nor does he know much about Sweden due to the short length of
stay there as an infant. His family were also all located in Australia and
therefore unable to provide any physical help to Mr. Nystrom. The United
Nations Human Rights Committee (UNHRC) found the case to be in breach of
international law, however, the Australian Government was non-compliant with the
UNHRC’s decision in Nystrom Vs Australia 2011. This decision of noncompliance
has both positive and negative outcomes which revolve around rule of law and
domestic & international legal obligations.
A positive of this case is that the
Australian Government followed their duties of governance, with the rule of law
being carried out. The Government had made the decision to deport Stefan
Nystrom following his criminal history of 87 offences which was detailed in a
Sydney Morning Herald article published in late 2005 titled “At risk of exile
after so many years” which detailed his offences “Nystrom was by common measure
of bad character: he had been sentenced to lengthy terms in jail for offences
including aggravated rape of a 10-year-old boy and armed robbery, according to
the Federal Magistrates Court”. These offences, plus many others, meant Stefan
Nystrom was in breach of s501 of the Migration Act 1958 (Cwlth), which under subsection
(3A) details that “the minister must cancel a visa that has been granted to a
person if the minister is satisfied that the person does not pass the character
test because of the operation of…substantial criminal record”. Thus, the
Australian Government had deported him in line with legislation that was
already in place, which reflects not only the expectation of the Government to
follow the law but also follows the rule of law, where everyone is equal in the
eyes of the law.
The rule of law was further seen following
the court process of review and appeal. Before Mr. Nystrom was deported, the
Federal Court overturned the Governments decision. In a ABC news article in
2005, dubbed “Court ruling opens door for deportation payouts” the details of
the court decision is reported “The Federal Court ruled it was wrong to deport
Mr. Nystrom even though he had been jailed for a serious crime”. However, the
Federal Government “has now sought to special leave to appeal to the High
Court”. The appeal and the original decision were upheld by the High Court. In
an ABC article named “Australia defies UN on deportation case”, published in
2012, a letter of response by the Federal Government is detailed “This
decision…upheld in the high court”. This court process shows the rule of law
being followed with a review of decision made by the Federal court and a
successful appeal to the High Court.
However, the decision is also in the breach
of the rule of law as well as breaching human rights and Australia’s
international obligations, a negative outcome of the case. It was condemned by
the United Nations Human Rights Committee which reviewed the deportation case in
Nystrom v Australia 2011. The UNHRC found that the Federal Governments decision
on deporting Mr. Nystrom was in breach of the International Covenant on Civil
and Political Rights (ICCPR), specifically article 12(4), the right to enter
his own country, and articles 17 & 23(1), his right to family. This
judgement by the UNHRC shows that Australia was in breach of international law
and its obligations, particularly condemning due to the fact that Australia is
a state party having partially ratified the law through legislation such as the
Migration Act 1958 (Cwlth) and the Human Rights and Equal Opportunity
Commission Act 1986 (Cwlth). The Human Rights Law Centre responded to the
non-compliance by the Federal Government following Nystrom v Australia, with a
statement condemning the response.
In an ABC article titled “Australia defied
UN on deportation case” sections of the report are detailed “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.” The article
also reports that “Barrister Brain Walters SC…also says the Government’s
decision could damage international relations, noting that Sweden requested
that Australia not deport Mr Nystrom on humanitarian grounds”. These responses
by the Human Rights Law Centre as well as the UNHRC reflect the lack of
compliance with not only rule of law, through ignoring the UNHRC’s decision,
but also ignoring its international obligations outlined through the ICCPR.
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