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

4.8
The State party reiterates that the complainant’s claims had been thoroughly
considered by the domestic authorities who found that the author was not a credible witness
and that the State party did not have protection obligations towards him. The State party
refers to the Committee’s statement in its General comment No.1 that, as it is not an appellate
or judicial body, it gives considerable weight to findings of fact that are made by organs of a
State party. The State party asks the Committee to give such weight to the findings of its
domestic processes that the claims of the complainant are without merit and should be
dismissed.
Complainant’s comments to the State party’s observations
5.1
On 28 August 2018, the complainant submitted his comments to the State party’s
observations.
5.2
On non-exhaustion of domestic remedies, the complainant claims that he did apply to
the Federal Circuit Court, but received a negative opinion as to his prospects of success from
the barrister who had taken the case. The complainant explains that the barrister was acting
pro-bono and gave the opinion verbally and that the complainant had no resources to pay for
anything more than that. The complainant refers to Section 486I of the Migration Act, which
is reproduced on every application form for the Federal Circuit Court and which points out
that it is illegal to proceed if there is a negative prospects of success opinion. 1
5.3
In response to the State party’s observation that the complaint is inadmissible ratione
materiae because there is no risk of torture for him, the complainant alleges that such risk
exists in the form of imprisonment. He reiterates his fear of the Vietnamese police on two
counts: for having assaulted a police officer and for being suspected of human smuggling as
a member (cook) of the crew. He alleges that the AAT did not question the fact that he served
as a cook at the boat on which he travelled to Australia. He also claims that people who
travelled with him on the same boat might have returned to Vietnam and may have been
interrogated about the composition of the crew. He alleges that if he returns to Vietnam, he
might be already identified as a crew member and suspected of being involved in a smuggling
operation, which brings a real risk of prolonged imprisonment. He further claims that
imprisonment in conditions prevailing in Vietnamese prisons amounts to torture or even
death.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it
shall not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. This rule does not apply where it
has been established that the application of those remedies has been unreasonably prolonged
or is unlikely to bring effective relief.2

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Section 486I reads as follows:
Lawyer’s certification
A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in
writing that there are reasonable grounds for believing that the migration litigation has a reasonable
prospect of success.
A court must refuse to accept a document commencing migration litigation if it is a document that,
under subsection (1), must be certified and it has not been.
See e.g. communication 306/2006, E.Y. v. Canada, (CAT/C/43/D/306/2006/Rev.1), para. 9.2. See
also the Committee’s General Comment No. 4 (2017) on the implementation of article 3 of the
Convention in the context of article 22 (CAT/C/GC/4), para. 34.

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