Cases violating CAT art 3 (potential) (5)

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.

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.

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.

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.