Stefan Nystrom was deported from Australia on 29 December 2006 after the government cancelled his visa on the grounds of his criminal record. Mr Nystrom was born in Sweden but arrived in Australia aged 27 days. Until his deportation at the age of 32, he had never left the country.

In a 25 page judgment, the Committee held that the deportation of Mr Nystrom (“an absorbed member of the Australian community” whose mother, sister and nuclear family all live in Australia) to Sweden (a country where he does not speak the language and “to which he has no ties apart from nationality” in the formal sense) breached the International Covenant on Civil and Political Rights.

By a majority of 13 to 2, the Committee found that Mr Nystrom’s deportation was arbitrary and had “irreparable consequences”. Before his deportation, Mr Nystrom was in a “in a process of rehabilitation”. According to Rachel Ball of the Human Rights Law Centre, who brought the complaint on behalf of Mr Nystrom, “Stefan’s mental health has deteriorated significantly since his deportation, requiring admission to a psychiatric facility.”

The Committee also found that Mr Nystrom’s deportation “led to a complete disruption of his family ties” in breach of Australia’s obligation to protect families. According to Ms Ball, “Stefan’s mother, Britt, and his sister, Annette, love and miss him greatly. They’re gravely concerned for his welfare.” In its reasons the Committee said that their indefinite separation from Mr Nystrom “has caused great emotional distress”.

By a majority of 10 to 5, the Committee also held that Australia arbitrarily deprived Mr Nystrom of “his right to enter his own country”. This is the first time that an international court or tribunal has found that the right of a person to freely enter his or her “own country” applies not just to citizens but to non-nationals with “special ties” to that country. According to leading international jurist Elizabeth Evatt AC, a former Australian judge and herself an ex-member of the Human Rights Committee, “This decision is highly significant. It establishes that in certain circumstances a person may be able to claim protection against arbitrary deportation by a state even though not a citizen of that state.” Justice Evatt said that “Under the ruling, the right to protection may arise as a result of long-standing and strong personal and family ties to that country, together with the absence of such ties elsewhere.”

Leading barrister Brian Walters SC, who acted pro bono in the case with the Human Rights Law Centre, said that there were a number of factors that made Mr Nystrom’s deportation particularly arbitrary. “Stefan was made a ward of the state aged 13. As his guardian, the state failed to notify him that he was not an Australian citizen or to obtain citizenship for him.” Mr Walters also said that “the Committee was critical of the inexplicable delay of seven years between when Mr Nystrom was last convicted of a serious offence and when the Minister decided to cancel his visa.”

In its judgment, the Committee said that Australia now has a legal obligation to allow and support Mr Nystrom to return home. According to Ms Ball, “The Human Rights Committee is an eminent body of independent international human rights experts.” She said that “Australia claims to be committed to human rights and the rule of law and has submitted to the jurisdiction of the Committee. As such, the government has both an international legal obligation, and a domestic policy duty, to give effect to the Committee’s judgment and bring Stefan home.” Justice Evatt similarly said that “As a country which takes its international human rights obligations seriously, Australian should respect and implement this decision.” She noted that “Australia is obliged to respond to the decision within six months.”

The expert body also recommended that the government review the operation of the Migration Act to ensure that Australia does not expose other persons to similar human rights violations. According to Mr Walters SC, “Australia has both a legal and moral duty not to deport people in these circumstances.” Mr Walters said that Australia’s practice of doing so could damage international relations, noting that “Sweden had requested that Australia not deport Mr Nystrom ‘on humanitarian grounds’.”

Contacts:

For further information or comments, please contact:

Rachel Ball, Human Rights Law Centre – (03) 8636 4433 or 0434 045 919

Brian Walters SC, Victorian Bar – 0411 020 967

Background Documents:

Nystrom v Australia, Views of UN Human Rights Committee, UN Doc CCPR/C/102/D/1557/2007

Statement on Nystrom v Australia by the Hon Elizabeth Evatt AC

On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment.  The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis. 

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  Particular attention is paid to the fundamental importance of prisoners’ access to healthcare and IVF treatment is recognised as legitimate treatment necessary for the preservation of health. 

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel. 

Facts

Ms Castles was convicted of social security fraud in November 2009 and sentenced to three years imprisonment, to be released on her own recognisance after 18 months.  She is currently imprisoned at HM Prison Tarrengower, a minimum security women’s prison with an emphasis on release preparation and community integration. 

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles and her lawyers made repeated requests for approval for Ms Castles to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.  By late-April 2010, the Secretary for the Department of Justice had still failed to make a decision, despite the prospects of Ms Castles becoming pregnant through IVF decreasing significantly with the passage of time. 

Ms Castles commenced proceedings on 23 April 2010 with an application for interlocutory relief which was refused (see Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)). 

On 3 May 2010, the Secretary of the Department of Justice made a decision to deny Ms Castles’ request to access IVF treatment.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.  

At the full hearing Ms Castles argued that she had a right under s 47(1)(f) of the Corrections Act 1986 (Vic) to access IVF treatment.  Section 47(1)(f) provides that all prisoners have a right to ‘have access to reasonable medical care and treatment necessary for the preservation of health’. 

Ms Castles also relied on her rights under the Charter of Human Rights and Responsibilities Act 2006 to privacy and family (s 13), equality (s 8) and to humane treatment in detention (s 22) and on common law duties owed to her as a prisoner. 

Decision

Emerton J found that Ms Castles has a right under s 47(1)(f) of the Correction Act to undergo IVF treatment.  The Corrections Act was found to entitle prisoners to ‘do more than remain in a “holding pattern” with respect to their heath while imprisoned.’

Her Honour held that IVF treatment is both necessary for the preservation of Ms Castles’ reproductive health and reasonable given:

• the commitment to the treatment that Ms Castles has already demonstrated;
• her willingness to pay for further treatment; and
• her age and the fact that she will become ineligible for further treatment before she is released from prison.

Accordingly, Ms Castles will be eligible for permits to leave the prison on a visit-by-visit basis, providing that adequate consideration has been given to security and resource issues.     

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.

Application of the Victorian Charter

The Charter did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter provisions. 

The right to humane treatment in detention (s 22)

The Court found that the right to humane treatment in detention:

[r]equires the Secretary and other prison authorities to treat Ms Castles humanely, with respect for her dignity and with due consideration for her particular human needs.

Her Honour took as a starting point that prisoners should not be subjected to hardship or constraint other than that which results from the deprivation of liberty and accepted that:

access to health case is a fundamental aspect of the right to dignity.  Like other citizens, prisoners have a right to…a high standard of health.  That is to say, the health of a prisoner is as important as the health of any other person.  

The Court stated that the right articulated in s 47(1)(f) of the Corrections Act ‘must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.  This right does not entail access to any treatment that a prisoner may want or have access to were he or she not imprisoned, but does require provision of ‘a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health’. 

The right to privacy (s13)

The Court found that while the right to privacy is a fundamental ‘right of considerable amplitude’, it was not engaged in the proceeding.  Relying largely on the Charter’s Explanatory Memorandum, which states that ‘[i]t is not Parliament’s intention to create a right to found a family’, her Honour held that:  

the Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights. 

The Victorian Equal Opportunity and Human Rights Commission, intervening under s 40(1) of the Charter, argued against this interpretation and its submissions were adopted in full by the plaintiff.  The Commission submitted that the omission of a right to found a family from the Charter was merely intended to ensure that the Charter did not pre-empt the results of a Victorian Law Reform Commission reference on assisted reproduction and adoption and should not restrict the scope of other rights that are protected in the Charter. 

The right to equality (s 8)

The Court concluded that there had been no breach of the right to equality and non-discrimination on the basis of impairment.  The Court found that Ms Castles had not received less favourable treatment than that afforded to a fertile prisoner who wishes to become pregnant.  Further, infertility was found not to be ‘a substantial reason’ for the denial of a permit to access IVF treatment as required by the Charter read in conjunction with s 8(2) of the Equal Opportunity Act 1995 (Vic). 

Obligation to ‘give proper consideration’ to human rights (s 38(1))

The plaintiff submitted that the Secretary had failed to give ‘proper consideration’ to human rights, as required by s 38(1) of the Charter.  In response, the defendants referred to briefings from Justice Health and Corrections Victoria which had been provided to the Secretary and which considered human rights (although relevant sections were redacted to remove legal advice from the Victorian Government Solicitor’s Office).  

In consideration of this issue, the Court held that the requirement to give proper consideration ‘requires a decision maker to do more than merely invoke the Charter like a mantra’ and to ‘seriously turn his or her mind to the possible impact of the decision on a person’s human rights’, but ‘should not be a sophisticated legal exercise’.  Rather, proper consideration should be taken to involve:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. 

It was held that consideration of human rights in accordance with s 38(1) of the Charter should not be ‘overly scrutinised by the courts’. 

Use of international jurisprudence in defining rights (s 32(2))

In considering the content and application of rights, the Court affirmed the relevance of human rights decisions and commentary from overseas, referring to jurisprudence from the European Court of Human Rights, the UK House of Lords, New Zealand, UN treaty bodies and international human rights experts.  Her Honour stated that consideration of international jurisprudence:

is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context.

This approach may be contrasted with that taken in another recent judgement of the Supreme Court, WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), in which Kaye J declined to rely upon international jurisprudence in his interpretation of the right to privacy under the Charter.   

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/310.html. 

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from refusing to grant the permits and approvals necessary to access IVF treatment, contrary to the Victorian Charter of Rights.  The Court did, however, order that the matter be expedited and brought on for speedy trial within a month given the urgency of the issues. 

Facts

The plaintiff, Kimberley Castles, is a 45 year old woman currently held as a low security prisoner at Tarrengower prison.  She is serving a three year sentence, commencing November 2009, for social security fraud.  Prior to her imprisonment, Ms Castles was undertaking IVF treatment.  The course of treatment was interrupted by her imprisonment and she will become ineligible for IVF when she turns 46 in December 2010.  Her chances of becoming pregnant diminish every month without treatment. 

Following her imprisonment, Ms Castles made repeated requests to the Secretary of the Department of Justice to grant the approvals necessary for her to continue IVF treatment while a prisoner.  When the Secretary failed to make a decision or grant the approvals, Ms Castles sought an injunction to restrain the Secretary from ‘continuing to neglect, fail or refuse to grant the permits and approvals necessary to access IVF treatment’. 

In seeking this order, Ms Castles relied on her rights under the Charter of Human Rights and Responsibilities to privacy and family (s 13(a)), to equality and non-discrimination (s 8), to humane treatment in detention (s 22) and to protection of family and children (s 17) and the Secretary’s correlate duty, in determining whether to grant the necessary approvals, to properly consider and act compatibly with these human rights (s 38).  Ms Castles also relied on provisions of the Corrections Act and the common law and fiduciary duties owed to her as a prisoner. 

Decision

Justice Osborn held that there was a serious issue to be tried in respect of the rights, but that the balance of convenience did not favour the grant of the injunction.  The Court did determine, however, that the matter was ‘deserving of expedition’ and ordered that it be ‘brought on for hearing within one month’. 

The Court arrived at the conclusion than an interlocutory injunction should not be granted for a number of reasons, including that:

• The Secretary ‘accepted that the plaintiff is entitled to determination of her application for a permit in accordance with law and the defendants have identified specific factual considerations properly regarded as relevant to the exercise of that discretion.’
• The plaintiff is not presently legally entitled to IVF treatment under the Assisted Reproductive Treatment Act 2008, as she has not yet received the necessary criminal record and child protection checks.  
• The ‘operational considerations and constraints’ raised by the defendants, including in relation to prison safety, security and ‘the provision of adequate facilities’ are matters of ‘serious public importance’.  Justice Osborn considered that the Court is not equipped to ‘second guess the Secretary’s exercise of discretion in circumstances where it appears on the evidence that it was open to her [to make the decision she did], and she is in a position to assess operational issues, which the Court is not’. 
• ‘One their face’, the operational considerations referred to above ‘fall within the category of matters comprehended by s 38(2) of the Charter’ (which provides that a public authority is not bound to act compatibly with human rights if, as a result of a statutory provision or otherwise under law, the public authority could not reasonably have acted differently or made a different decision). 
• On the material before the Court, the case that the Secretary was ‘bound to make a decision contrary to that which she has made, is weak’.
• A speedy trial of the matter can be fixed and liberty to apply for further orders can be reserved to the parties.

Accordingly, the matter was fixed for trial on 1 June 2010. 

The decision is available at www.austlii.edu.au/au/cases/vic/VSC/2010/181.html. 

Phil Lynch is Executive Director of the Human Rights Law Resource Centre. 

The Centre is acting for Ms Castles, together with Blake Dawson, Ron Merkel QC and Michael Borsky of Counsel. 

Stefan Nystrom was born in 1973 and, until very recently, had lived permanently in Australia since he was 27 days old.   He is a Swedish citizen but has no relevant ties to Sweden or any State other than Australia.

On 22 December 2006, we submitted to the Human Rights Committee a Request for Urgent Interim Measures in relation to the imminent deportation that was then faced by Mr Nystrom.  That request was denied by the Special Rapporteur on New Communications and Interim Measures and Mr Nystrom was deported from Australia to Sweden on 29 December 2006.

In our initial request, we foreshadowed that we would submit a more detailed form of individual communication for the consideration of the Human Rights Committee.

The detailed Individual Communication, which was submitted on 4 April 2007, alleges that Mr Nystrom’s detention and deportation were in violation of articles 9, 12(4), 14(7), 17 and 23 of the ICCPR.  It seeks compensation and reinstatement of permanent residency.