Violations: CAT art 3
Potential violations: CAT art 3
Committee object (3) (2012)
The Committee against Torture concludes that the deportation of the complainant to China would constitute a violation of article 3 of the Convention.
This Chinese Falun Gong practitioner was a leader of the spiritual movement in his village when, in 1999, Falun Gong was banned in China. Thousands of practitioners have since been gaoled, interned or committed to psychiatric hospitals for the criminally insane. When a member of Ke Chun Rong’s group was detained, he organised a number of Falun Gong practitioners to protest at the police station. In 2001, Mr Ke was himself detained for 16 days. ‘[I]nterrogated and tortured nearly every day’, he was ‘told to renounce his beliefs and give up the names of those who practised Falun Gong with him’. Another practitioner ‘organised the payment of bribes to secure his release’.
In 2004, Mr Ke left his wife and two sons and travelled to Australia on a business visa. He applied for asylum, but his negligent migration agent did not present crucial evidence of his claims, notify him of an interview he was expected to attend at the Refugee Review Tribunal, or represent him in court. His refugee claim was rejected. 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, despite his physical scars and diagnosis of post-traumatic stress disorder.
Mr Ke exhausted domestic remedies by seeking unsuccessfully to re-submit a fresh refugee application. After four years living freely in the community, he was arrested for overstaying his visa and detained for what would ultimately be two-and-a-half years. He believes fellow detainees who observed his continuing Falun Gong practice in detention in Australia must have informed on him since returning to China, because pressure on his family resumed. In November 2012, his wife was detained for four or five days.
Uniting Church members in Sydney assisted Mr Ke to petition CAT, which found a breach of article 3 in 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 proceeded to refoule Mr Ke to China.
Australia did ‘not necessarily accept the conclusion’, but is reported to have said it may allow the author to ‘make a further application for a Protection Visa’.
In March 2014, his former representative confirmed that the Minister for Immigration did allow Mr Ke to apply for a visa under Australia’s complementary protection provisions. He has been released into ‘community detention’ to await the outcome of his application. This means he is provided with housing and a small allowance to live freely in the community, but is not permitted to work. Remedy Australia has been unable to establish the outcome of his visa application.
Given CAT’s assessment in Chun Rong v Australia, Australia remains in potential violation of art 3 for as long as Mr Ke remains at risk of deportation to China. Since torture and cruel, inhuman or degrading treatment or punishment are regarded as gross violations of human rights, Mr Ke’s case remains of utmost concern.
For source details, see Remedy Australia's 2014 Follow-up Report (PDF 1.3Mb).