Deportation and Non-Refoulement

X v Australia, UN Doc CAT/C/42/D/324/2007 (5 May 2009) Mr X, a Palestinian born in Lebanon in 1960, was detained at the Villawood Detention Centre in Australia.  He sought political asylum in Australia, however, his request was rejected and he risked forcible removal to Lebanon. He claimed, inter alia, that by deporting him, Australia would violate his rights under art 3 of the Convention against Torture (CAT).

Facts

The complainant was a former member of the Lebanese armed forces.  In 1975, he joined the Christian Democrats militia. In 1982, his unit participated in the Sabra and Chatila massacre.

Shortly thereafter, he became a close assistant to the militia's leader, Mr Z, and became aware of a number of illegal acts.  In 1984, the militia party chanced allegiance from Israel to Syria.  The party then split into two factions, one headed by Mr Z and a second which the complainant supported.  The complainant feared that Mr Z would begin to threaten him.

In 1988, the complainant travelled to Germany and was granted asylum there.  Whilst there, he learned that members of the militia that participated in the Sabra and Chatila massacre had been attacked and killed by other groups.

In 1998, Mr Z located the complainant in Germany and began to threaten him.  The complainant paid several German police officers to protect himself and his family from Mr. Z.  He was subsequently arrested and charged with attempting to bribe police officers and was sentenced to 4 years and 3 months imprisonment.

After his release, he obtained a false Slovenian passport and an Australian tourist visa and travelled to Australia in March 2002.  On 7 October 2002, the complainant applied for asylum. His application was rejected by the Department of Immigration and Citizenship on 20 August 2003.

The Department found that he was not a refugee as Article 1F(a) and (b) of the 1951 Convention which excludes, inter alia, protection for those for whom there are serious reasons for considering that they have committed:

• crimes against peace, war crimes, or crimes against humanity;
• a serious non-political crime.

The Department found that the complainant's involvement in the massacre of Sabra and Chatila constituted a war crime and a crime against humanity.  The complainant appealed the Department's decision and on 29 April 2005, the Administrative Appeals' Tribunal (AAT) reversed the Department's findings in relation to Article 1F(a), holding that there was insufficient evidence to support the conclusions.  The AAT, however, found that article 1F(b) applied, due to the bribery allegation against German police officers.

On 9 November 2005, the complainant requested the Minister for Immigration and Citizenship to exercise his discretion to substitute a more favourable decision under section 501J of the Migration Act. The Minister declined to intervene.  By 2007, after another unsuccessful discretionary application to the Minister, the complainant had exhausted all available domestic remedies.

Decision

The issue before the Committee was whether the complainant's removal to Lebanon would constitute a violation of Australia's obligation, under art 3 of the CAT, not to expel or return a person to a State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture.

Article 3 of the Convention against Torture

Article 3 enshrines an absolute obligation not to return a person to a State where there are serious grounds to believe that he/she would be a danger of being subjected to torture.

The definition of torture makes it clear that suffering constituting torture must be inflicted by/at the instigation of or with the consent/acquiescence of a public official or a person acting in an official capacity.

The CAT reiterated that each case must be assessed individually.  That is, whether conduct amounts torture depends on the nature of the alleged act and must involve a degree of severity beyond cruel, inhuman or degrading treatment or punishment.

The Risk of Torture

In assessing the risk of torture in this case, the Committee took into account all relevant considerations, including the existence in the relevant State of a consistent pattern of gross, flagrant or mass violations.  The absences of a consistent pattern of gross violations of human rights, the Committee reasoned, did not mean that a person cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.

The risk of torture must be assessed on grounds that go beyond mere theory or suspicion.  The risk need not be highly probable, but it must be personal, present and foreseeable.

The Committee noted that the complainant's allegations relating to his possible persecution or torture by Palestinian groups (due to his past activities) provided insufficient evidence to substantiate his claims.  Therefore, the Committee considered that the complainant failed to demonstrate that he would face a foreseeable, real and personal risk of being subjected to torture in Lebanon.

The Committee, therefore, concluded that the complainant's removal to Lebanon would not constitute a breach of art 3 of the CAT.

Relevance to the Victorian Charter

The CAT's decision has implications for the interpretation of s 10(a) of the Charter which provides that a person must not be subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading way.

The decision highlights the inherent requirement of providing substantiated evidence to confirm and establish that the person may be subjected to torture upon returning to a country.  That is, that the complainant has an onus of proof of establishing that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present.

Carolina Riveros Soto is a criminal lawyer at the Legal Aid Commission of NSW and the Vice Chair of the NSW Young Lawyers Human Rights Committee.