Human Rights Law in Australia Magazine



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Right Now - Issue 1 - March 2007

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Henrietta Zeffert

Rights - then and now
Julian Burnside

The state of human rights George Williams

War crimes by leaders of the Australian Government? A possible implication of the continued detention of David Hicks at Guantanamo Bay
The Hon. Alastair Nicholson

The Victorian Charter of Human Rights and Responsibilities: taking rights into the nooks and crannies of the lives of ordinary Victorians
John Tobin

What does the Charter of Human Rights and Responsibilities mean for people in Victoria?
Helen Szoke

Australia’s first bill of rights: The Australian Capital Territory’s Human Rights Act
Hilary Charlesworth

2007 – The dawn of a new era in disability rights
Frank Hall-Bentick and David Webb

Easy English
Amy McGowan

We need a bill of rights
Rt Hon Malcolm Fraser

Same sex, same rights
Jonathan Wilkinson

A mandate to legislate?
Jon Stanhope

Poverty – do Australians care?
Tim Costello

A world away from home
Kristen Hilton

The Nystrom case: what is one’s “own country”?
Brian Walters

Questions for a good citizen
Tony Birch

Case and Legislation updates

Human rights events around Australia

Featured art: Nadim Karam, The Travellers
Adelaide Rief


Stefan Nystrom was born on 31 December 1973 in Sweden. His parents lived in Australia for several years before he was born, and were permanent residents. His older sister was born here. Stefan’s mother (who had been born in Finland and moved to Sweden as an adult) took a brief trip back to Sweden when she was pregnant to visit family members, and then realised it would not be safe for medical reasons to make the return journey. She remained in Sweden for the birth.

When he was twenty-five days old, his mother left with him to return to Australia, arriving here on 27 January 1974. Since then, Stefan Nystrom has never known any other country. His parents separated and divorced when he was five and there has been almost no contact with the Swedish relatives, whose names he did not know. He does not speak Swedish.

Mr Nystrom’s parents did not apply for citizenship for him, although he would readily have qualified. As a result, he was here as a permanent resident - on a “transitional (permanent) visa”, although he did not know that and had never had occasion to turn his mind to it. He had never sought a passport to travel overseas.

Mr Nystrom has a long criminal record, and has served a number of prison terms. As a result, in 2004 the Minister cancelled his visa on the grounds that he failed to pass the character test.

Mr Nystrom brought proceedings in the Federal Magistrates’ Court challenging the decision, arguing that he was in fact the holder of an “absorbed person visa” and the wrong visa had been cancelled. The Court rejected his argument, affirming the original decision.

Mr Nystrom then appealed to the Full Federal Court which overturned the decision. The majority held:

He is only an ‘alien’ by the barest of threads. However, if the decision under challenge here stands he will be deported to Sweden and permanently banished from Australia. That result causes us a … sense of disquiet … [Mr Nystrom] has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities.

The Minister then appealed to the High Court which upheld the original decision. It held that Mr Nystrom’s absorbed person visa was not a relevant consideration that the Minister failed to take into account because the absorbed person visa was also cancelled upon cancellation of his transitional (permanent) visa. Mr Nystrom had qualified for and acquired simultaneously each of the deemed visas. However, the visas conferred the same rights and so the same considerations applied whichever visa was cancelled. The power conferred on the Minister to cancel a visa could therefore be exercised in Mr Nystrom’s case.

Following the High Court’s decision, Mr Nystrom was taken into custody. It is not clear why this happened – he had been out of trouble for some time and had properly attended whenever required. He was held in the Maribyrnong Immigration Detention Centre for some months until being deported on 29 December 2006 and arriving in Sweden on 31st December – his 33rd birthday.

Mr Nystrom’s elderly mother has little money and cannot afford to visit him in Sweden. She was not permitted to see her son off, possibly for the last time, from Melbourne Airport. Nor were other family members.

No one met Mr Nystrom in Sweden. He had no resources, no Swedish language, and no understanding of the culture. Australian authorities did nothing to organise accommodation, food, money or language training, or any emotional help for a person separated from his family.

Having been deported on character grounds, the law will not permit Mr Nystrom to return to Australia – even to visit his mother and sister.

Article 12(4) of the International Covenant on Civil and Political Rights says that no one shall be arbitrarily deprived of the right to enter his own country. But what is one’s “own country”? Citizenship gives one guide, but it is not the only one.

For all practical purposes, Mr Nystrom was entirely Australian. He had lived in the country for all but the first twenty-five days of his life, he had been educated here, and had even been under the care and protection of the State for some of his childhood. All his bonds are with this country. He would have been entitled to citizenship from a very early age had his parents known to apply for it.

Australia’s decision to treat Mr Nystrom in this way, after he had already served terms of imprisonment for his crimes, is harsh and arbitrary. It also represents a failure to take responsibility for problems we have created. Pushing our problems onto another country creates poor international relations.

Mr Nystrom and his family have applied to the United Nations Human Rights Committee for redress. Decisions of the Human Rights Committee are not binding, but governments are to respect them as part of their treaty obligations.

Mr Nystrom is not the only person being treated in this way by the Australian government at present. With scarcely credible cruelty, the Australian authorities are dumping people it does not want in other countries and washing their hands of responsibility. It is hoped that the Human Rights Committee will provide a human rights framework for more humane consideration of these cases in future.

Brian Walters is a Melbourne Senior Counsel. He is the immediate past president of Liberty Victoria and the Vice President of Free Speech Victoria. He is currently leading the legal team handling Stefan Nystrom’s communication to the Human Rights Committee.



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