Potential violations: CAT art 3
[Australia] has an obligation, in accordance with article 3 of the Convention, to refrain from forcibly returning the complainant to Afghanistan or to any other country where he runs a real risk of being expelled or returned to Afghanistan.
Mr M.K.M., an Afghan national, said he feared the Taliban (an armed, non-state actor) because of his Tajik ethnicity and Sunni Muslim religion. He says the Taliban accused him of working for a foreign government and of involvement in a bomb plot when 2 suspected bombers were arrested outside his shop. After those arrests, he received 2 threatening and demanding phone calls. Then he and his father were abducted by armed men and imprisoned in a small cellar with 3 other men. He was interrogated and tortured for about 5 months in all, but after the first month, his father and another of the detainees were brutally executed in front of him. Eventually, Mr M.K.M. was sent by the Taliban on a mission to Kabul, and he managed to escape.
Mr M.K.M. fled Afghanistan and arrived in Australia by boat in March 2010 without an entry visa. He was placed in immigration detention where he applied for refugee status. He feared “he will be identified, persecuted and possibly killed upon return as an escapee from the Taliban, since he witnessed many of their activities and saw the faces of many of its members while he was detained by them” (para. 3.1). He said he could not rely upon the Afghan Government for protection from torture by the Taliban because it was “infiltrated at all levels by the Taliban” (para. 2.8).
Australia decided that he was not a refugee. Australian authorities accepted the ‘undisputed’ facts that “the Taliban believed that [Mr M.K.M.] was responsible for a failed attack by two suicide bombers near his shop, that [he] and his father were kidnapped and tortured by the Taliban over several months, that the [he] witnessed his father’s beheading, that he escaped from the Taliban and consequently had a subjective fear of returning to Afghanistan”, but Australia did not agree that he faced persecution in Afghanistan because of his Tajik ethnicity; and argued that he could live somewhere else within Afghanistan (para. 4.6).
Australia explained that its Migration Act offers protection to people who may not fit the Refugee Convention definition, but who are nonetheless at risk of torture and are owed the ‘complementary protection’ of the Convention Against Torture and the ICCPR. Mr M.K.M.’s claims were thus assessed for this form of protection, but this assessor did not believe his claims of past detention and torture by the Taliban (para. 4.7) -- which Australian authorities had already accepted had occurred and did not dispute had occurred in subsequent correspondence with the Committee.
In August 2014, the Federal Court of Australia observed that, “It is difficult not to find some considerable sympathy for [Mr M.K.M.]. He has been found to have suffered greatly at the hands of the Taliban in Afghanistan... Not surprisingly, it has been found that he has a real fear of returning to Afghanistan. Nevertheless, … [he] will most likely be returned to Afghanistan” (para. 4.10).
Four days after petitioning the Committee Against Torture in May 2015, the Committee issued interim measures asking Australia not to deport Mr M.K.M. to Afghanistan while his communication was before the Committee. Presumably Australia complied, as in March 2016, it asked the Committee to lift its request for interim measures. The Committee declined, reaching its final views in May 2017.
In Australia, Mr M.K.M. was diagnosed with anxiety, depression and post-traumatic stress disorder, exacerbated by his prolonged and indefinite detention by Australia. He claimed that Australia failed to take into account whether his mental conditions could be treated in Afghanistan and whether this amounted to cruel, inhuman or degrading treatment.
Additionally, Mr M.K.M. now feared persecution at the hands of his own government, if deported, because he would be a failed asylum seeker who had (at that point) lived in a western country for over 5 years. He had no close family left in Afghanistan, and without networks of support, he feared being “at greater risk of being detected and persecuted by the Taliban or other parties” if deported (para. 3.3).
The Committee noted that Australia had drawn an adverse conclusion as to Mr M.K.M.’s credibility, without due regard for the fact that "complete accuracy is seldom to be expected by victims of torture" (para. 8.6).
The Committee stated that an 'internal flight or relocation alternative' is not a reliable and durable solution "where the lack of protection is generalised," such as in Afghanistan (para. 8.9).
Although it is for a person seeking asylum to establish a prima facie case for their refugee claim, host nations must also make substantial efforts to determine whether there are grounds for believing the claim. The Committee concluded that deporting Mr M.K.M. to Afghanistan would violate article 3, as there is a foreseeable, real and personal risk of him coming to harm.
In its response to the Committee’s final views, Australia disagreed that it would violate article 3 by deporting Mr M.K.M. to Afghanistan, and criticised the Committee’s final views as inconsistent, erroneous, unsubstantiated and demonstrating ‘limited application of legal principles’ (para. 5). Australia insisted that non-refoulement (article 3) obligations only apply to torture, not to lesser harms amounting to cruel, inhuman or degrading treatment or punishment. So even if Mr M.K.M. cannot get adequate mental healthcare in Afghanistan, and even if that lack of healthcare would be cruel, inhuman or degrading, that does not trigger article 3 obligations (paras. 8, 10 & 21).
Australia informed the Committee that Mr M.K.M. would be “subject to Australia’s domestic migration processes” (para. 30).
Read the Australian Government’s response to M.K.M. v Australia