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Stefan Nystrom and 'The Kafka Principle'

By Paul Bamford - posted Friday, 15 December 2006

Stefan Nystrom was pushed a step or two closer to his eventual deportation last week. Last Friday, the on-line editions of several newspapers, reported that Nystrom had been returned to Department of Immigration Custody at Maribyrnong detention centre after a County Court judge sentenced him to time already served for three recent criminal offences.

Nystrom doesn’t attract sympathy: he has a long string of criminal convictions, including one aggravated rape committed at the age of 16. However his coming deportation is only possible because of a legal technicality: he was born in Sweden and didn’t arrive in Australia until 27 days later. His mother, a Swedish-born Australian citizen, didn’t apply for citizenship for Stefan so he remained, for the purposes of Australian law, a Swede.

Nystrom’s deportation comes at the end of a long series of legal hearings. A Federal Court appeal against the deportation, before Justices Moore, Emmett and Gyles, was successful, by a majority decision. The judges were unanimous, however, in taking a dim view of the Minister for Immigration and Multicultural Affairs, Amanda Vanstone’s, use of powers conferred by Section 501 of the Migration Act:


I have had the advantage of reading the reasons of Moore and Gyles JJ for concluding that the appeal should be upheld. While I do not agree with that conclusion, I share the disquiet expressed by their Honours concerning the circumstances in which a man who has spent all of his life in Australia and who has no knowledge of the Swedish language will be removed to Sweden and banished from Australia because of what must be characterised as an accident of history and an oversight on the part of his parents.
(Justice Emmett)

Their Honours also agreed that Nystrom was not a particularly admirable person. Emmett said, “The material before the Court indicates that the appellant is a thoroughly unpleasant man having been convicted of serious and odious crimes”. In their joint reasoning, Moore and Gyles produced one of those statements that, when repeated, quickly produces outrage at the “out-of-touch” attitudes of the judiciary:

The appellant 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. It is the chance result of an accident of birth, the inaction of the appellant’s parents and some contestable High Court decisions. Apart from the dire punishment of the individual involved, it presumes that Australia can export its problems elsewhere.

Over the months that I have been tracking Nystrom’s progress towards deportation, I have seen plenty of evidence of how out-of-touch their Honours are with community attitudes on criminality and citizenship. Whenever I have written about this case - on my blog - there has always been at least one comment angrily arguing that Nystrom is very obviously the kind of person that we don’t want in Australia; the only thing wrong with the situation is that we can’t get rid of those other bad people who happen to be citizens. The issue of whether it is appropriate for the Minister for Immigration to have such a power in the first place rarely gets debated.

The Federal Court decision was overturned in the High Court on November 8, 2006. The High Court decision is seemingly a complex one - largely because in reasoning its way to a decision, the Court relied heavily on the history of various changes to the Migration Act to determine the intent of the legislators. The finding of the High Court on the legislative intent of the Migration Act is not complex. It is disturbingly simple:

The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available.
(Chief Justice Gleeson)


What the Chief Justice is saying, in plain terms is this: in various sections of the Migration Act, Parliament has passed laws that have the clear intention of giving the Executive arm of the Government power over individuals. Since the sections of the Migration Act that Nystrom’s lawyers relied on in their Federal Court appeal don’t conflict in that regard they don’t contradict each other, and Nystrom’s pending deportation is, or will be, perfectly lawful.

Despite the availability of other “sources of power”, Section 501 of the Migration Act seems to have become the preferred source of power when DIMIA, or the Minister, decides it’s time to rid Australia of someone we no longer want here. According to Chapter 11 of DIMIA's report Managing the Border: Immigration Compliance (June 2005):

In 2003-04, decisions under sections 200 and 201 of the Migration Act resulted in two criminals being deported. There were 60 removals of non-citizen criminals whose visas were cancelled under section 501.

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About the Author

Paul Bamford is a Melbourne writer and blogger. He is a permanent resident of Australia - for now.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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