Cases about torture or cruel, inhuman or degrading treatment (11)

Blessington & Elliot v Australia (HRC, 2014)

Remedy's assessment: Unremedied

Bronson Blessington and Matthew Elliot were children who committed violent crimes for which they were sentenced to life in prison without parole. The UN Human Rights Committee found that children should never be sentenced to life in prison without a realistic chance of release and recommended Australia reform its laws without delay to ensure the possibility of release is realistic and regularly considered. The two men ought to be given the benefit of the revised legislation and compensated for breaches of the International Covenant on Civil and Political Rights.

Read more on Blessington & Elliot v Australia.

C v Australia (HRC, 2002)

Remedy's assessment: Partially remedied

‘C’ was detained on arrival in Australia in 1992 and accepted as a refugee in 1995. He acquired serious mental illness in detention, and his threatening behaviour while in a delusional state led to his being sentenced to 3½ years’ gaol. With psychiatric care, he made ‘dramatic’ improvement and was deemed no longer dangerous. However, as a non-citizen with a custodial sentence exceeding 12 months, he was slated for deportation. The HRC accepted that detention had been the cause of mental illness in this man with no psychiatric history, that his mental illness was the ‘direct cause’ of his offending and that, with appropriate medical care, he was unlikely to re-offend. As well as being arbitrary and lacking judicial review, his detention became ‘cruel, inhuman or degrading treatment’ once it was evident that it was causing his deteriorating mental health. To deport Mr C would also breach article 7. The Committee recommended compensation. Mr C ultimately obtained a visa to remain in Australia, in accord with Committee Views, but he has not been compensated.

Read more on C v Australia.

Cabal & Pasini v Australia (HRC, 2003)

Remedy's assessment: Partially remedied

Mexican brothers-in-law living in Australia were subject to arrest warrants in Mexico. They were remanded in custody while contesting extradition. The HRC found that locking the 2 men in a wire cage with floor area only big enough for a chair constituted a breach of prisoners’ right to humane and dignified treatment. The men were extradited before the HRC reached its Final Views. Australia has said it would ensure ‘a similar situation does not arise again’, but does not accept that Cabal and Pasini are entitled to compensation.

Read more on Cabal & Pasini v Australia.

Chun Rong v Australia (CAT, 2012)

Remedy's assessment: Unremedied

Ke Chun Rong was a Falun Gong leader in his village when the spiritual movement was banned in China in 1999. Thousands of practitioners were gaoled, interned or committed to psychiatric hospitals. When Mr Ke organised a protest, he was detained for 16 days and tortured to extract the names of other Falun Gong practitioners. Mr Ke escaped to Australia where he applied for asylum. Australia did ‘not dispute that Falun Gong practitioners in China have been subjected to torture’, but did not believe Mr Ke was a Falun Gong practitioner or that he was ‘detained or mistreated’ as he claimed. The Committee Against Torture found that Australia had ‘failed to duly verify the complainant’s allegations and evidence through … effective, independent and impartial review’, and that Australia would breach article 3 if it deported Mr Ke to China. Mr Ke has since been allowed to apply for a visa under Australia’s complementary protection provisions, which protect people facing breaches of CAT and the ICCPR that fall outside the Refugee Convention.

Read more on Chun Rong v Australia.

Dewage v Australia (CAT, 2013)

Remedy's assessment: Unremedied

Mr Dewage was a union organiser and active member of an opposition party in Sri Lanka. He suffered threats, harassment and assault from members of governing and rival parties and was also ill-treated by members of the LTTE. After he escaped to Australia, ‘thugs’ broke into his house and his mother’s house looking for him, injuring his mother and threatening to kill his family. His wife fled and has not been heard from since.

Australia rejected Mr Dewage’s refugee claim and detained him pending deportation. He petitioned CAT, which issued interim views requesting he not be deported while it considered his communication. The Committee concluded that Mr Dewage faced a ‘foreseeable, real and personal risk of being subjected to torture by Government officials if returned to Sri Lanka’ and that Australia must therefore ‘refrain from forcibly returning [him] to Sri Lanka or to any other country where he runs a real risk of being expelled or returned to Sri Lanka.’

Read more on Dewage v Australia.

Elmi v Australia (CAT, 1999)

Remedy's assessment: Unremedied

A Somali man from a persecuted ethnic minority claimed asylum because he feared torture by the Hawiye clan, but his claim was rejected by Australia. Somalia was then a ‘failed state’. The Committee Against Torture found that, in the absence of a conventional government, the dominant Hawiye clan was exercising quasi-governmental control and the threat of torture by this clan could, under these circumstances, fall under the Torture Convention. Therefore, Australia would violate CAT if it deported Mr Elmi ‘to Somalia or to any other country where he runs a risk of being expelled or returned to Somalia.’ Australia allowed Mr Elmi to submit a fresh refugee application which also failed. After more than 3 years in detention, Elmi ‘chose’ to leave Australia, ‘heading in the general direction of Somalia.’ His destination and fate are unknown. CAT considers the case closed. Remedy Australia questions the voluntariness of Mr Elmi’s departure from Australia when his choices appeared to be to end his prolonged detention by agreeing to leave, or else endure indefinite detention until forced deportation.

Read more on Elmi v Australia.

Hicks v Australia (HRC, 2015)

Remedy's assessment: Partially remedied

Australian man David Hicks was captured in Afghanistan in 2001 and detained by the US at Guantánamo Bay. In 2007, he was tried by Military Commission and sentenced to 7 years’ jail. Under a prisoner transfer agreement, Hicks was moved to Australia, where he served 7 months of his sentence, the remainder being suspended. Hicks claims his military trial was unfair, his conviction unlawfully retrospective and his detention arbitrary.

The UN Human Rights Committee found that Australia imprisoning Mr Hicks for 7 months following his return to Australia amounted to arbitrary detention, but that no individual remedy was owed to Mr Hicks because Australia’s “actions were intended to benefit” him. Australia is nonetheless obliged to “prevent similar violations in the future.”

Read more on Hicks v Australia.

Horvath v Australia (HRC, 2014)

Remedy's assessment: Partially remedied

In 1996, 21-year-old Corinna Horvath was assaulted by police during an unlawful raid on her home. Her nose was broken and she was hospitalised for 5 days. Despite her case reaching the High Court of Australia, Ms Horvath has still not received the compensation awarded to her by the County Court when it first heard the case in 2001.  Further, none of the police involved has been disciplined or prosecuted for what the Court found to be trespass, assault, unlawful arrest and false imprisonment. Ms Horvath seeks compensation and effective discipline of the police officers involved. In 2014, the UN Human Rights Committee found that her right to an effective remedy has been violated and recommended legislative reform and compensation.

Read more on Horvath v Australia.

Kwok v Australia (HRC, 2009)

Remedy's assessment: Partially remedied

Ms Kwok fled China when her husband was arrested for corruption offences. He was later sentenced to death. She was wanted for alleged involvement in the ‘same set of circumstances’. China sought her forced repatriation without launching formal extradition proceedings, and Australia was willing to comply. Ms Kwok claimed she would not receive a fair trial in China and could also be sentenced to death. The HRC requested a stay of deportation; Australia complied. The HRC found that Australia should not deport Ms Kwok, as the risk to her life ‘would only be definitively established when it is too late’. It found potential violations of the right to life and the prohibition on torture. It also found that Ms Kwok’s 6½ years in immigration detention was arbitrary detention. Australia should not send Ms Kwok to China ‘without adequate assurances’ from the People’s Republic, and should compensate her for ‘the length of detention to which [she] was subjected’. Ms Kwok was not refouled, but neither has she been compensated.

Read more on Kwok v Australia.

MMM et al v Australia (HRC, 2013)

Remedy's assessment: Unremedied

The 9 authors of this communication – 6 Tamils, including one child, who fled the conflict in Sri Lanka in 2009 or shortly thereafter, plus 2 Burmese and a Kuwaiti man – arrived in Australia and were detained. All were accepted by Australia as refugees. However, they were not released from detention because ASIO determined they were an undisclosed security risk. The HRC found the authors suffered inhuman and degrading treatment, arbitrary detention and denial of habeas corpus, recommending they all be released, rehabilitated and compensated. Further, Australia ‘should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9 of the Covenant’. Seven of the 9 authors remain in detention; none has been compensated or provided with rehabilitation services.

Read more on MMM et al v Australia.

Madafferi & Madafferi v Australia (HRC, 2004)

Remedy's assessment: Partially remedied

Mr Madafferi, an Italian in Australia, overstayed his tourist visa. He came to the attention of Australian authorities when he was sentenced by an Italian court in absentia. In the meantime, he had married an Australian and fathered Australian children, but his application for a spouse visa was refused on character grounds and he was detained, pending deportation. Mr Madafferi developed a ‘stress disorder’ in detention and was admitted to a psychiatric hospital for 6 months. The HRC requested a stay of deportation, which was initially refused. The Committee found that conditions in immigration detention were inhuman, and that there would be arbitrary interference with the family, in conjunction with treaty provisions protecting the family and children, if Mr Madafferi were deported. In 2005, his deportation order was overturned ‘on humanitarian grounds’. The HRC has deemed Australia’s response satisfactory.

Read more on Madafferi & Madafferi v Australia.