Cases violating CAT art 3 (potential) (2)

Note that committees can record actual or potential violations.

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

CAT art 3

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.

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.