Chun Rong v Australia , CAT/C/49/D/416/2010
The UN Committee against Torture found that Australia was in violation of its non-refoulement obligations under the Convention against Torture because it failed to satisfy procedural obligations under article 3.
The complainant was a Chinese national and Falun Gong practitioner who was refused a Protection Visa and faced deportation. The Committee found that the complainant provided sufficient details to present an arguable case regarding his risk of torture if returned to China. However, he was never granted a hearing and his Protection Visa was refused on the basis of his initial incomplete application. The lack of an effective, independent and impartial review of the refusal meant the complainant’s claims and evidence were not duly verified by the Australian immigration authorities. In the circumstances, deportation of the complainant would violate Australia’s obligation not to return a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
The complaint was brought by Ke Chun Rong (“the complainant”), a national of China who requested and was denied a Protection Visa under the Australian Immigration Act 1958 and was asked to leave Australia.
The complainant’s claims
The complainant claimed that he joined Falun Gong in China in 1995, and in 1996 had a leadership role and began instructing new practitioners. When Falun Gong was made illegal in 1999 police confiscated the complainant’s Falun Gong materials and threatened his business. He continued to practice Falun Gong secretly with others.
In 2001 the complainant was arrested and detained by police because he was a Falun Gong group leader and had organised a protest against the detention of another practitioner. He was held in detention for 16 days, and was interrogated and tortured nearly every day. He went into hiding upon his release. He left China on 12 December 2004 to avoid arrest and persecution, after hearing that a fellow Falun Gong practitioner from his village identified him under torture as his Falun Gong teacher. He continued to practice Falun Gong in Australia.
The complainant’s application for a Protection Visa
The complainant arrived in Australia on 12 December 2004 on a Business (Short Stay) Visa. On 20 January 2005 he applied for a Protection Visa, with the assistance of a registered migration agent. The complainant claims that the negligence, incompetence or fraud of the migration agent meant that his application for a Protection Visa was not properly prepared and his address was incorrect. His application was refused by an immigration officer on 7 March 2005 without an interview. The Refugee Review Tribunal advised him that it was unable to make a favourable decision on the information in its possession and invited him to give evidence at a hearing. The complainant was not informed of the invitation for a hearing and did not attend. The Tribunal confirmed the refusal based on a lack of evidence of his practice of Falun Gong and a lack of detail in his claims.
The complainant appealed to the Federal Magistrate’s Court and the Federal Court of Australia for judicial review, but the appeals were dismissed for lack of jurisdictional error and being out of time. He was arrested in 2009 for overstaying his visa. He submitted three requests for ministerial intervention. The second request was assisted by the NGO Balmain for Refugees, and included new evidence and information on his detention and torture, his Falun Gong practice, and medical and psychiatric reports. All three requests were denied.
Australia maintained that the complainant had failed to demonstrate a foreseeable, real and personal risk that he would be subjected to torture by the Chinese authorities if he returned to China. It pointed out that the Refugee Review Tribunal held that the complainant’s claims were not credible, and that because of the lack of detail in his initial claim the Tribunal was not satisfied he was a Falun Gong practitioner or that he had been mistreated by the Chinese authorities. It also submitted there was insufficient information as to what treatment he might suffer if he returned to China. Australia argued that the domestic legal system offers a “robust process of merits and judicial review” and that the documents provided by the complainant had been duly considered by the immigration department in the ministerial intervention requests.
The key finding of the Committee was that the complainant had fulfilled the burden of presenting an arguable case but that the Australian immigration authorities had failed to sufficiently verify his claims and evidence. The complainant submitted sufficient details to demonstrate a foreseeable, real and personal risk he would be subjected to torture by the authorities if he returned to China. However, the merits review of the complainant’s claim was conducted predominantly on the initial application for a Protection Visa, which was filed shortly after he arrived in Australia, without knowledge or understanding of the system. The complainant was not interviewed in person, and did not have the opportunity to clarify any inconsistencies in his initial statement. By not granting an effective, independent and impartial review of the refusal of the Protection Visa, taking into account the new information provided by the complainant, Australia failed to meet its procedural obligations under article 3 of the Convention against Torture. The Committee therefore found Australia violated its obligation not to return a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
The decision turns on Australia’s obligation to comply with international human rights conventions when making decisions under Federal immigration law. Because the decision deals with procedural inadequacies, it does not address the substantive content of the right of non-refoulement. Rather the decision establishes that failing to duly investigate evidence of a risk of torture when presented with sufficient evidence of an arguable case is itself sufficient to violate Australia’s treaty obligations.
This decision is available online at: http://www2.ohchr.org/english/bodies/cat/jurisprudence.htm
Georgia Boyce is a Law Graduate at King & Wood Mallesons.