Advance unedited version CAT/C/65/D/756/2016
father. In addition, he claims that he would be arrested, detained and tortured because he
left the country illegally and because he would be perceived as a member of the crew of the
smuggler’s boat, given that he was the cook and did not pay any fees for his trip to Australia.
If he were to spend a considerable time in prison, the conditions there would amount to
severe pain and suffering and would be life threatening.
3.2
The complainant alleges that according to the Regulations on Exit, Entry and Transit
there is a fine for leaving Vietnam illegally. Being from a poor family, he cannot afford to
pay the fine and would be subjected to further harassment and extortion by the police.
3.3
He further submits that the State party will have to contact the Vietnamese Consulate
in order to get him a travel document. In such situation, the Vietnamese authorities will be
able to assume that he sought international protection abroad. Combined with other facts
of his case, namely that he was a cook on a smuggler’s boat and that he assaulted a police
officer, it is likely that the authorities will impute him with anti-regime sentiments.
State party's observations on admissibility and the merits
4.1
On 27 September 2016, the State party submitted its observations on the
admissibility of the complaint, stating that the complainant’s claims are inadmissible due
to non-exhaustion of domestic remedies, ratione materiae and/or as being manifestly
unfounded.
4.2
The State party submits that the complainant has not exhausted domestic remedies
as he has not sought judicial review of the AAT’s decision by either the Federal Circuit
Court or the Federal Court of Australia. The State party notes that the complainant states
that he did not apply for such a review as he was advised that he would have no prospect
of success. The State party however submits that the complainant has provided no evidence
to support this assertion.
4.3
The State party further submits that the complaint has made claims that are
inadmissible ratione materiae. In particular, it refers to the complainant’s claims regarding
harassment, extortion and detention. The State party argues that article 3 does not apply to
these claims because they do not involve allegations that the complainant will be subjected
to harm that falls within the definition of torture under article 1 of the Convention and
therefore do not constitute claims that the complainant is a victim of a violation by the State
party of the Convention.
4.4
If the Committee does not accept that the complainant’s claims are inadmissible
ratione materiae, the State party also submits that the claims are manifestly unfounded. The
State party notes that the complainant claims that he would risk facing a considerable time in
prison in Vietnam which would amount to severe pain or suffering, due to the conditions in
Vietnamese prisons. The State party argues that as determined during the review by domestic
authorities, the complainant would only risk a brief detention that would not amount to harm.
The State party further notes that the complainant has alleged that he would suffer further
harassment and extortion at the hands of the police if returned to Vietnam. The State party
notes that the domestic authorities did not find the complainant credible in this regard and
further notes that he has not submitted any new substantiating or corroborating evidence in
support of his claim.
4.5
The State party further submits that the claims made by the complainant in his
complaint have been thoroughly considered by several domestic decision-makers and found
not to engage Australia’s non-refoulement obligations under the Convention. The State party
also argues that the complainant has not provided any new claims or evidence in his
submissions to the Committee that have not already been considered by domestic
administrative and judicial processes and asks the Committee to accept that these claims have
been thoroughly assessed through the domestic process.
4.6
On 27 July 2017, the State party submitted its observations on the merits.
4.7
In its observations, the State party insists on inadmissibility of the complaint and asks
the Committee to consider it before it passes to the considerations of the merits, as required
by the rules 113 and 118 of the Committee’s rules of procedure.
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