Cases about non-refoulement (12)

A.K. et al. v Australia (HRC, 2021)

Remedy's assessment: Unremedied

Eleven children arrived in Australia as unaccompanied minors claiming asylum and were detained on Christmas Island. Over a year later, Australia moved them to the mainland and put them in group housing. Of multiple alleged breaches of the ICCPR, the Human Rights Committee found Australia in violation of articles 9(1), 9(4) and 24.

Read more on A.K. et al. 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.

Gnaneswaran v Australia (HRC, 2021)

Remedy's assessment: Unremedied

A Tamil survivor of torture arrived in Australia by boat in 2012 and applied for refugee protection. In the 6 years he spent in Australia appealling the initial rejection of his refugee claim, Mr Gnaneswaran married and had a child. His wife and Australian-born daughter were granted visas. Australia gave Mr Gnaneswaran 3 days’ notice of his forcible deportation, in which time he lodged a communication to the UN Human Rights Committee. The Committee responded the next day, asking Australia not to deport him while his case was before the Committee. But he was deported the same day to Sri Lanka, where he was arrested, interrogated and brought to court. The Committee found a breach of article 17, read in conjunction with article 23(1) of the ICCPR, concerning the protection of the family from arbitrary interference.

Read more on Gnaneswaran v Australia.

H.K. v Australia (CAT, 2017)

Remedy's assessment: Unremedied

Mr H.K., a Pakistani national, was arbitrarily detained and mistreated by armed government agents – including 3 days of severe beatings and sleep deprivation – escaped to Australia where immigration authorities accepted these events took place, but did not accept that he faced a well-founded fear of torture if he returned to Pakistan, and so refused his refugee claim.

The Committee found his fears were well founded and that Australia would violate article 3 (non-refoulement) if it deported him to Pakistan. Australia disagreed with the Committee’s conclusions and said Mr H.K. would be “subject to Australia’s domestic migration processes”.

Read more on H.K. v Australia.

J.S. v Australia (HRC, 2022)

Remedy's assessment: Partially remedied

J.S. is a Chinese national who was arrested in Australia on suspicion of shoplifting and, having overstayed her visitor visa, was detained in an immigration detention centre. She subsequently applied for and was refused refugee protection.

In a mass data breach by the Immigration Department, personal information about Ms J.S. was published on a government website for several days. The UN Committee found that Australia had breached her privacy under article 17, both read alone as well as in conjunction with her right to an effective remedy under article 2(3) of the ICCPR.

Read more on J.S. 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.

M.K.M. v Australia (CAT, 2017)

Remedy's assessment: Unremedied

Mr M.K.M. claimed refugee status on arrival in Australia based on undisputed facts of his arbitrary detention and torture in Afghanistan by the Taliban (a non-state actor), who also brutally executed his father and another detainee in front of him. Australia rejected his claim, arguing the Taliban had not targetted him due to his ethnicity or religion, and also refused his claim for ‘complementary protection’ from torture (outside of the 5 grounds enumerated in the Refugee Convention).

The Committee Against Torture held that deporting him to Afghanistan would amount to refoulement in violation of article 3, and recommended Australia not deport him to Afghanistan “or to any other country where he runs a real risk of being expelled or returned to Afghanistan.” Australia complied with the Committee’s interim measures request, but entirely rejected the Committee’s final views.

Read more on M.K.M. v Australia.

S.L. v Australia (CAT, 2022)

Remedy's assessment: Unremedied

As a teenage minor, Mr S.L. was tortured and forcibly recruited by the Liberation Tigers of Tamil Eelam during the civil war in Sri Lanka. He escaped by boat in 2012 and claimed refugee status in Australia, which disbelieved his claims, disallowed new information and evidence as it became available, and denied him legal aid and a protection visa.

The Committee Against Torture found that deporting Mr S.L. would risk refoulement, a breach of CAT article 3. It was critical of Australia's refugee assessment processes and concluded that Australia should reconsider Mr S.L.'s refugee claim and refrain from deporting him while his (fresh) application was considered. But the Committee did not issue interim measures at the outset, asking Australia not to deport him while his communication was before the Committee.

Read more on S.L. v Australia.

Shams et al v Australia (HRC, 2007)

Remedy's assessment: Unremedied

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.

Thirugananasampanthar v Australia (CAT, 2017)

Remedy's assessment: Unremedied

A Tamil Sri Lankan recounting years of persecution by soldiers and allied paramilitary gangs, including 6 days of arbitrary detention and torture, fled to Australia where he applied unsuccessfully for refugee protection.

On receipt of his communication, the Committee Against Torture immediately issued interim measures, asking Australia not to deport him while his communication was under consideration. Australia claims the request did not reach the relevant arm of government in time and Mr Thirugananasampanthar was deported the next day, never to be heard from again. The Committee did not agree with Mr Thirugananasampanthar’s claim that he faced refoulement, but did find Australia had not acted in good faith and that deporting him in spite of the interim measure request and before a decision could be reached violated article 22 (which recognises the competence of the Committee to receive communications from individuals).

Read more on Thirugananasampanthar v Australia.