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.
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.
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.
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.
Eight unrelated young men from Iran, fearing persecution for a range of reasons, arrived in Australia and were detained. Each submitted a communication to the HRC, containing similar allegations concerning their treatment in detention and their fear of refoulement. Australia responded to all 8 cases together, and the HRC did the same, hence 8 independent communications became Shams et al. The Committee found that all had suffered arbitrary detention in excess of four years, had been denied habeas corpus and the right to remedy and that each should be compensated. Seven were ultimately found by Australia to be refugees, while the 8th was given a humanitarian visa. They have not been compensated.
Read more on Shams et al v Australia.