Memorandum To: Frank From: Minh Date

Uniya

JESUIT SOCIAL JUSTICE CENTRE

Memorandum

To: Frank From: Minh

Date: 4 June 2003 Respond by:

Re: Complaint to the UN Committee Against Torture

Once all available domestic remedies have been exhausted, a complaint could be communicated on behalf of an Iranian asylum seeker to the Committee Against Torture to decide whether their forced deportation violates the obligation of Australia under article 3 of the Torture Convention which prohibits the refoulement of a person to another State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture.

The Committee normally holds two regular sessions each year and is due to meet again on 13-24 November. In the interim, the Committee’s rule of procedure 108 is the basis for a complainant to seek measures by the Committee in the form of a request made to Australia to prevent possible irreparable damage while the communication is being considered.

Before considering any claims contained in a communication, the Committee must decide whether or not it is admissible. The conditions for admissibility of communications are specified in the Convention and in the Committee’s rules of procedure (rule 107). It is your responsibility to establish a prima facie case for the purpose of admissibility by fulfilling each of the following requirements:

• 
  The complaint is not anonymous;
  
• 
  The complaint does not constitute an abuse of process or manifestly unfounded;
  
• 
  The complaint is not incompatible with the provisions of the Convention;
  
• 
  The complaint must not have been examined (or be under examination) under another procedure of international investigation or settlement;
  
• 
  All available domestic remedies have been exhausted; and
  
• 
  The time elapsed since the exhaustion of domestic remedies is not so unreasonably prolonged.
  

The Committee makes a determination based on the merits of the case. It will determine whether the asylum seeker is personally at risk from torture if repatriated but will take the general situation in Iran (“the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”) into account.

UNHCHR has provided a model complaint form with guidelines in which the attached form is based (there is no standard form).

If you are bringing the claim on behalf of the Iranian asylum seeker, you should provide proof of his/her consent or state clearly why such consent cannot be provided. To minimise delay, you should attach copies of the decisions of domestic courts/authorities and the relevant sections in the Migration Act and other legislations, and any corroborating evidence you possess that substantiates your claim and/or description of the facts.

You should note that when detailing facts, the activities carried out in Australia (and not just in Iran) might be relevant in the Committee’s determination (Seid Mortesa Aemei v Switzerland, Committee against Torture, Communication No. 34/1995).

The complaint should be faxed and posted to:

The Committee Against Torture

c/o Centre for Human Rights
Office of the High Commissioner for Human Rights
United Nations Office
8-14 avenue de la Paix

1211 Geneva 10, Switzerland

Fax + 41 22 9179022

Resources:

Torture Convention:

http://www.hrweb.org/legal/cat.html

CAT decisions at the Human Rights Library:

http://wwwserver.law.wits.ac.za/humanrts/cat/decisions/cat-decisions.html

Overview of CAT procedures:

http://www.unhchr.ch/html/menu2/8/overcat.htm

Link to CAT’s Rules of Procedure and General Comments:

http://www.web.amnesty.org/web/web.nsf/pages/treaty_documents

CAT Fact Sheet including model complaint form:

http://www.unhchr.ch/html/menu6/2/fs17.htm

Name: Minh Nguyen
Sign:

PO Box 522 Kings Cross NSW 1340 Australia

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