(a)
While HREOC is empowered to investigate complaints related to torture and other cruel, inhuman or
degrading treatment arising from the International Covenant on Civil and Political Rights and the Convention on the
Rights of the Child, the Convention against Torture is not included in HREOC’s complaint handling jurisdiction;
(b)
HREOC can only make recommendations of an advisory nature;
(c)
HREOC’s complaint handling powers do not extend to investigating the acts and practices of
intelligence agencies.
The State party should consider strengthening and extending the mandate of the HREOC, inter alia, to
the handling of complaints for violation of the Convention against Torture, including for acts
committed by intelligence agencies officers. Furthermore, the Committee urges the State party to give
adequate follow-up to the recommendations of HREOC.
Article 3
(15) The Committee is concerned that the prohibition of non-refoulement is not enshrined in the State party’s
legislation as an express and non-derogable provision, which may also result in practices contrary to the Convention.
The Committee also notes with concern that some flaws related to the non-refoulement obligations under the
Convention may depend on the exclusive use of the Minister’s discretionary powers thereto. In this respect, the
Committee welcomes the information that the same Minister for Immigration and Citizenship has indicated that the
high degree of discretionary authority available to him under existing legislation should be reconsidered.
The State party should explicitly incorporate into domestic legislation, both at Federal and
States/Territories levels the prohibition whereby no State party shall expel, return or extradite a
person to another State where there are substantial grounds for believing that he/she would be in
danger of being subjected to torture (non-refoulement), and implement it in practice. The State party
should also implement the Committee’s previous recommendations formulated during the
consideration of the State party’s second periodic report to adopt a system of complementary
protection ensuring that the State party no longer solely relies on the Minister’s discretionary powers
to meet its non-refoulement obligations under the Convention.
(16) The Committee reminds States parties that under no circumstances can they resort to diplomatic assurances
as a safeguard against torture or ill-treatment where there are substantial grounds for believing that a person would
be in danger of being subjected to torture or ill-treatment upon return.
The State party, if resorting to diplomatic assurances in any other situation than those that must be
excluded by article 3 of the Convention, should provide the Committee with information in its next
report on how many cases of extradition or removal subject to receipt of diplomatic assurances or
guarantees have occurred since 11 September 2001; the State party’s minimum requirements for such
assurances or guarantees; the measures of subsequent monitoring it has undertaken in such cases as
well as the legal enforceability of the assurances or guarantees given.
(17) The Committee notes that section 198 (6) of the Migration Act provides that a person in immigration
detention must be removed from Australia as soon as reasonably practicable. In this respect, while noting that the
current policy of the Department of Immigration and Citizenship (DIAC) is that a protection visa applicant in
immigration detention will not be removed from Australia pending the outcome of the judicial review or the
Ministerial Intervention request in relation to the application, the Committee is concerned that appeals filed against a
decision not to grant asylum or to deny or cancel a visa do not seem to have automatic suspensive effect.
The State party should ensure that effective remedies are available to challenge the decision not to
grant asylum or to deny or cancel a visa. Such remedies should have the effect of suspending the
execution of the above decision, i.e. the expulsion or removal.
49
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