past incidents alleged by the petitioner do not indicate that it is foreseeable that he
would be the subject of torture if he returned to Mogadishu. It concedes that the
political situation in Somalia makes it possible that the petitioner may face
violations of his human rights, but contends that such violations will not
necessarily involve the kind of acts contemplated by article 1 of the Convention.
4.2 According to the State party, the petitioner alleges that the petitioner will be "at
risk from members of the United Somali Congress (USC) and "in danger because
he had formerly worked as an informer with the United Nations Operations in
Somalia (UNOSOM)" but he does not allege that he would be at risk or danger of
such acts as would contravene the Convention. In evidence presented to the RRT
the petitioner stated that "he could be attacked by Hawiye clans people to extort
money from him to support their militia, the USC". However, the threat of
extortion does not fall within the definition of article 1 of the Convention.
4.3 According to the State party, the petitioner has not adduced substantial
evidence that the petitioner is faced with a risk of torture by the USC that is over
and above the risks faced by every resident of Mogadishu caught between factional
fighting of armed groups. It contends that the domestic review processes expressed
serious reservations as to the veracity of the petitioner's account of events,
including conflicting accounts of the incident involving the death of his wife and
the injury to himself. According to the State party, at the initial airport interview,
the petitioner failed to provide details that either his sister had been raped and
killed in 1991 or that his sister-in-law had been killed in a shooting incident in
1991 which also resulted in the petitioner being wounded. The petitioner initially
stated that he had never been outside Somalia but subsequently stated that he first
left Somalia in 1991. In a statutory declaration made to the RRT on 2 September
1998 the petitioner admitted that he made a number of false statements when he
arrived in Sydney. The State party also states that the RRT found it implausible
that UNOSOM would employ someone who had been out of the country for some
period to locate arms caches in Mogadishu. The State party also referred to the
RRT's finding that the petitioner had attempted to prevent the Tribunal from
investigating his case through people who have first hand information regarding
his situation since 1991.
4.4 Moreover, the State party submits that the acts the petitioner fears if he is
returned to Somalia do not fall within the meaning of "torture" in accordance with
article 1 of the Convention because they are not acts conducted by a public official
or person acting in an official capacity. The State party accepts that "members of
minority groups are subject to harassment, intimidation, and abuse by armed
gunmen of all affiliations" (4) but does not accept that these are committed by, or
at the instigation of, or with the consent or acquiescence of a public official or any
other person acting in an official capacity" as required under article 1 of the
Convention. It asserts that these are acts committed by individuals in a private
capacity for reasons of personal gain. (5)