willing to return to any area of Somalia including Galkayo. However, it considered
that these factors did not convert his status into that of a refugee.
2.8 The petitioner sought judicial review of the RRT decision in the Federal Court
of Australia. On 10 September 1999, the Federal Court dismissed the petitioner's
application upon which the petitioner lodged an appeal to the Full Federal Court of
Australia. On 10 March 2000, the Full Federal Court dismissed this appeal. The
petitioner lodged an application for special leave to appeal from the decision of the
Full Federal Court to the High Court of Australia. The petitioner notes that this is
the final appellate court in Australia.
2.9 According to the petitioner, Somalia remains a failed state and a territory
revealing a consistent pattern of gross and flagrant human rights abuses. (1) He
says that the situation of the Shikal in Somalia is well-known. Amnesty
International has described the Shikal as being "vulnerable to serious abuses
including arbitrary killings", and has stated that it "is opposed to the return of
anyone from the Shikal clan to Somalia". He states that the facts of this case are
similar to those in the case of Elmi v. Australia (2), where the Committee found a
violation of article 3 of the Convention. The petitioner also refers to relevant
United Nations bodies which have made it clear that they are opposed to the
involuntary repatriation of failed asylum seekers to Somalia. (3)
The complaint
3. The petitioner claims that, due to the previous attacks the petitioner has suffered
at the hands of the USC, there are substantial grounds for believing that the
petitioner would be in danger of being subjected to torture on return to Somalia
and, therefore, Australia would be violating article 3 of the Convention if he were
returned there. The petitioner points out that according to respected sources, "a
consistent pattern of gross, flagrant or mass violations of human rights", prevails in
Somalia, and refers in this regard to article 3(2) of the Convention. It is claimed
that the petitioner himself would be personally at risk of being subjected to torture
if returned to Somalia. He also says that his clan is a minority clan and, therefore,
would be unable to protect him.
The State party's observations on admissibility and merits
4.1 The State party submits that this communication is inadmissible ratione
materiae on the basis that the Convention is not applicable to the factual situation
submitted by the petitioner. In particular, the State party contends that the
treatment the petitioner may or may not endure if he is returned to Somalia, does
not fall within the definition of torture as set out in article 1 of the Convention. The
State party submits, that to be classified as torture, the given conduct must inflict
"severe pain or suffering, whether physical or mental." The State party is of the
opinion that, although past events are a guide to what may occur in the future, the