A United Nations committee has asked the Morrison government to "facilitate and ensure" the prompt return of three Australians stranded overseas, in a verdict hailed as a win for the thousands of people desperate to return home.
A leading citizenship lawyer said the decision affirmed her view that Australia's international travel restrictions are inconsistent with its human rights obligations.
The expats put their case to the UN Human Rights Committee, arguing that the government's weekly cap on overseas arrivals breached its international law obligations.
Article 12 (4) of the International Covenant on Civil and Political Rights, which Australia has signed up to, states that "no one shall be arbitrarily deprived of the right to enter his own country".
In documents filed on behalf of expat Jason George, prominent human rights lawyer Geoffrey Robertson, who is representing the parties through the FreeandOpenAustralia.org campaign, said Australia could not use the coronavirus pandemic to justify breaching its obligations.
"Even if Australia could rely upon the coronavirus pandemic as a basis for derogation (which it cannot), the travel restrictions are neither necessary, nor proportionate, as evidenced by the fact that, although every country in the world has been exposed to the risks posed by coronavirus, Australia is alone in restricting the rights of its citizens to return home," the application said.
Mr Robertson said there were "compelling" reasons for Australia to lift the travel restrictions to allow Mr George (and wife Deborah) to return home, saying he would suffer "irreparable harm" if they weren't.
The couple, who are based in the US, were desperate to return to Tasmania to be near a close family member as they underwent cancer treatment, according to the application.
The Geneva-based organisation on Thursday agreed to grant a so-called interim measure, which requested the government "facilitate and ensure the author's prompt return to Australia" while the committee considers the case.
The request does not imply that a decision has been reached on the "substance of the matter", according to a letter posted online by a lawyer involved in the case.
Speaking to The Canberra Times from his home in New Jersey, Mr George hoped the verdict would signal the end of his months-long struggle to return home.
Mr George said he felt "abandoned" by the federal government, which was responsible for shutting the international border in March last year and has not, in his view, created enough hotel quarantine capacity to accommodate returning Australians.
There are more than 35,000 Australians overseas who have registered with the Department of Foreign Affairs and Trade as wanting to return home.
That is far more than what can be accommodated under Australia's weekly international arrivals cap.
The states are currently able to accept about 5,500 arrivals a week. The Howard Springs centre near Darwin is being expanded to accommodate about 1000 per week. The cap has fluctuated throughout the pandemic, with numbers cut whenever outbreaks occur.
A microbiologist who saw COVID-19 run rampant in New York last year, Mr George said he knew full well how dangerous the virus could be.
But he questioned Australia's hardline approach, saying it appeared "at some point science stopped being used".
"Australia needs to wake up at a policy level," he said.
"Whilst vaccination is ongoing, we also need to open up. What is the end game if we don't - do we become a hermit kingdom? I don't think that is sustainable."
Mr George has received two shots of the Moderna vaccine and believed he presented no public health risk.
Prime Minister Scott Morrison on Friday said allowing overseas arrivals who had been vaccinated to quarantine at home - rather than in a hotel - was the next step in reopening Australia's borders.
However, he could not say when that might be allowed.
Canberra-based citizenship law expert Kim Rubenstein was involved in the expats' application, which required they show the UN committee that legal avenues in Australia had either been exhausted or had no prospect of success.
Professor Rubenstein said the interim decision was significant.
"This is significant in affirming what many have been arguing for some time - that the Australian government's restrictions on Australian citizens returning is inconsistent with it's obligations which guarantees freedom of movement," she said.
Professor Rubenstein noted there was no international police force to enforce the decision, and Australia "didn't have a great record" in complying with UN verdicts. But she suggested it could increase political pressure on the government.
The Canberra Times contacted DFAT for comment.
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