Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011).

• Author: Whittle, Devon

I Introduction

On 18 July 2011, the United Nations Human Rights Committee (the 'Committee') published its views in Nystrom v Australia. (1) In Nystrom, the Committee expanded the scope of art 12(4) of the International Covenant on Civil and Political Rights, (2) finding that it could apply to non-citizens where they had sufficient ties to a country. This significantly weakens the nexus previously required by the Committee between art 12(4) and nationality. (3)

This case note summarises the findings in Nystrom in relation to art 12(4) and briefly discusses the Committee's reasoning in light of its past views. While the Committee in Nystrom also found violations of arts 17 and 23 of the ICCPR and was asked to consider a number of other alleged rights violations, this note does not consider those aspects of the Committee's reasoning.

II Background

Mr Nystrom was born in Sweden in 1973. When he was 25 days old he travelled to Australia, where he has lived ever since, holding a Transitional (Permanent) Visa that has been automatically conferred upon him. Mr Nystrom's family ties are all in Australia and he has no connections with Sweden, nor does he have contact with the members of his extended family members who live there. He does not speak Swedish and was under the misapprehension that he was an Australian citizen.

In 2004, the Australian government cancelled Mr Nystrom's visa on the basis that he failed to satisfy the character test in s 501(6) of the Migration Act 1958 (Cth) due to his criminal record. Mr Nystrom had previously been convicted of a number of criminal offences, including aggravated rape, arson, armed robbery, burglary and drug offences, and had served time in prison. Mr Nystrom's visa was cancelled a number of years after he had been released from prison, having served time for his most serious offences.

Mr Nystrom applied for judicial review of the cancellation of his visa, but this application was dismissed by a federal magistrate. (4) The federal magistrate's decision was then overturned on appeal to the Full Court of the Federal Court, where Moore and Gyles JJ found that Mr Nystrom was 'an absorbed member of the Australian community with no relevant ties elsewhere' (Emmet J in dissent). (5) The government successfully appealed that decision to the High Court (6) and Mr Nystrom was ultimately deported to Sweden on 29 December 2006.

Mr Nystrom submitted a communication to the Committee, arguing that Australia had violated his ICCPR rights as follows:

* his right to liberty and security of person (art 9(1));

* his right to enter his own country (art 12(4));

* his right not to be tried or punished for an offence of which he had already been convicted or acquitted (art 14(7));

* his right to protection from arbitrary and unlawful interference with privacy, family and home. (art 17);

* his right to protection of his family (art 23(1));

* his right to equality before the law (art 26); and

* his right to non-discrimination (art 2(1)) in relation to the rights contained in arts 14(7), 17 and 23(1).

Mr Nystrom also submitted that his mother's and his sister's rights under arts 17 and 23(1) had been violated by his deportation.

III The Views of the Committee

The Committee found that Mr Nystrom's claim under ICCPR art 14(7) was inadmissible, his claim under art 9(1) failed on its merits and that, due to its other findings, it did not need to consider his claims under arts 2(1) or 26. Mr Nystrom's claims on behalf of his mother and sister also failed. The Committee found that Australia had violated arts 12(4), 17 and 23(1).

A Majority View Regarding Art 12(4)

Article 12(4) of the ICCPR states: 'No one shall be arbitrarily deprived of the right to enter his own country.' Mr Nystrom submitted that the phrase 'his own country' should not be read to mean the country of his nationality, Sweden; rather, it referred to Australia because of his 'special ties [and] claims' to Australia which meant that he 'cannot be considered to be a mere alien'. (7) In relation to the arbitrariness of the deportation, Mr Nystrom submitted that his criminal record did not justify deportation, given that Australia was 'his own country', unless there were 'compelling and immediate reasons of necessity' for the expulsion. (8) He also pointed to Australia's delay in cancelling his visa and that 'only moderate weight was given to the risk of recidivism', which he suggested showed that protection of the community was not a 'major factor' in the decision to deport him. (9)

When considering whether Australia was Mr Nystrom's 'own country', the Committee recalled its General Comment No 27 (10) on the freedom of movement. (11) General Comment No 27 notes that the phrase 'his own country' in art 12(4) is broader than only the country of a person's 'formal' nationality and could include a country that an individual has 'special ties to or claims in relation to' such that he or she 'cannot be considered to be a mere alien'. (12) The Nystrom majority found a number of such factors that could demonstrate 'close and enduring connections between a person and a country', including 'long standing residence, close personal and family ties, intentions to remain' and the absence of similar ties elsewhere. (13) Such connections, the Committee noted, 'may be stronger than those of nationality' and thus could make a country a person's 'own' for the purposes of art 12(4) despite his or her formal nationality being of a different country. (14)

The Committee noted that Mr Nystrom had lived in Australia since he was 27 days old, that his nuclear family lives in Australia, that he has no ties to Sweden and that he does not speak Swedish. (15) It also took into consideration the Federal Court's Finding that Mr Nystrom was an 'absorbed member of the Australian community', that he had many of the duties of a citizen and that he was generally treated like a citizen in Australia. (16) Further, it noted Mr Nystrom's submissions that the reason he did not acquire Australian citizenship was that he thought he was an Australian citizen and that, while he was a minor under state guardianship, the Australian authorities did not begin the process of acquiring citizenship for him. (17) Considering these factors, the Committee found that Mr Nystrom had established that Australia was 'his own country' within the meaning of art 12(4) of the...