CAT/C/65/D/756/2016 Advance unedited version

1.1
The complainant is a Vietnamese national. His request for asylum had been rejected
by Australia. He claims that his deportation to Vietnam would constitute a violation, by
Australia, of article 3 of the Convention. The complainant is represented by counsel, Mr.
John Phillip Sweeney.
1.2
On 27 May 2016, the Committee, acting through its Rapporteur on new complaints
and interim measures, rejected the complainant’s request for interim measures.
1.3
On 22 March 2017, Committee, acting through its Rapporteur on new complaints and
interim measures, rejected the State party’s request of 27 September 2016, to consider the
admissibility of the communication separately from its merits.
Factual background
2.1
The complainant is from a poor family in Vietnam. His father was a fisherman. In
2011, the police confiscated his father’s boat and demanded an exorbitant amount to release
it. The father got into a fight with the police officer, who hit him. In order to defend his father,
the complainant hit a police officer on the head with a stick. Fearing the consequences
assaulting a police officer, the complainant fled to Dong Nai. Some months after the incident,
his father organized the complainant’s departure to Australia, based on an agreement with
the smugglers that he would cook on the boat instead of paying the fees for the trip.
2.2
The complaint arrived to Australia by boat without a visa or passport on 10 May 2011.
Between 10 May 2011 and 1 March 2012, he had five interviews the aim of which was mainly
to establish his age and identity. The complainant’s statements varied from him being a 1415 year-old orphan who travelled to Australia with his younger brother to escape economic
hardships, to being a 21 year-old son of living parents, who has four siblings, and who came
to Australia alone running away from possible persecution for hitting a police officer.
2.3
On 5 October 2012, the complainant applied for a protection visa. His application was
rejected by the Delegate of the Minister for Immigration and Citizenship on 10 July 2013.
The Delegate found that the complainant was not a credible witness and that he has
‘consistently and repeatedly provided false and misleading information’. He openly admitted
to having claimed to be a minor in order to obtain a residence permit in Australia. The
Delegate considered that the complainant’s claims related to the possible risk he would face
if returned to Vietnam, were fabricated. There was no reason to believe that the complainant
or his family were of interest for the Government, or that they were subjected to
discrimination by the Vietnamese authorities or had their daily activities restricted in any
way. The Delegate found that the complainant’s allegations that he was wanted by the
Vietnamese authorities for having hit a police officer were not substantiated. The Delegate
rejected the complainant’s allegations that he would be arrested, detained and likely tortured
for having left the country illegally, finding that the country information suggests that only
those failed asylum seekers who oppose the Government might be targeted, which was not
the case of the complainant.
2.4
On 26 February 2013, the complainant was granted a bridging visa E and released
from detention.
2.5
The complainant filed an appeal to the Administrative Appeals Tribunal (AAT). On
22 January 2016, his application was rejected. The AAT confirmed that the complainant was
not credible and considered that his claims were fabricated. Regarding the allegations related
to his illegal departure from Vietnam, the AAT considered that since he was not involved in
any people smuggling-related activities, he could at most be briefly detained and interviewed
by the authorities upon return, but any possibility of being subjected to ill treatment or torture
was remote.
2.6
On 16 April 2016, the complainant submitted a Ministerial Appeal asking the Minister
to substitute the AAT’s decision based on the public interest. The Department of Immigration
and Border Protection rejected his appeal on 2 May 2016.
The complaint
3.1
The complainant claims that in case of his deportation to Vietnam, Australia would
violate its obligations under article 3 of the Convention. He claims fearing reprisals from
the police because he attacked a police officer back in 2011, when he was defending his
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