argued that “the definition of the act of torture
should be a definition of the intrinsic nature of the
act of torture itself, irrespective of the status of the
perpetrator.”3 There was little support for the French
view although most States did agree that “the
Convention should not only be applicable to acts
committed by public officials, but also to acts for
which the public authorities could otherwise be
considered to have some responsibility.”4
been given ample possibilities to present his case, as
described below. In the primary stage of processing
an application for a protection visa, a case officer
from the Federal Department of Immigration and
Multicultural Affairs (DIMA) examines the claim
against the provisions of the Convention relating to
the Status of Refugees. When there are claims which
relate to the Convention against Torture and further
clarification is required, the officer may seek an
interview, using an interpreter if necessary.
Applicants must be given the opportunity to
comment on any adverse information, which will be
taken into account when their claim is considered.
Assessments of claims for refugee protection are
made on an individual basis using all available and
relevant information concerning the human rights
situation in the applicant’s home country.
Submissions from migration agents or solicitors can
also form part of the material to be assessed.
4.7 The delegation of the United Kingdom of
Great Britain and Northern Ireland made an
alternative suggestion that the Convention refer to a
“public official or any other agent of the State.”5 By
contrast, the delegation of the Federal Republic of
Germany “felt that it should be made clear that the
term ‘public official’ referred not only to persons
who, regardless of their legal status, have been
assigned public authority by State organs on a
permanent basis or in an individual case, but also to
persons who, in certain regions or under particular
conditions actually hold and exercise authority over
others and whose authority is comparable to
government authority or—be it only temporarily—
has replaced government authority or whose
authority has been derived from such persons.”6
4.11 The State party further explains that if an
application for a protection visa is refused at the
primary stage, a person can seek review of the
decision by the Refugee Review Tribunal (RRT), an
independent body with the power to grant a
protection visa. RRT also examines claims against
the Convention relating to the Status of Refugees. If
RRT intends making a decision that is unfavourable
to the applicant on written evidence alone, it must
give the applicant the opportunity of a personal
hearing. Where there is a perceived error of law in
the RRT decision, a further appeal may be made to
the Federal Court for judicial review.
4.8 According to the State party it was ultimately
“generally agreed that the definition should be
extended to cover acts 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.” 7 It was not agreed that the
definition should extend to private individuals acting
in a non-official capacity, such as members of
Somali armed bands.
4.12 DIMA provides for application assistance to
be given to eligible protection visa applicants. Under
this scheme, all asylum-seekers in detention have
access to contracted service providers who assist
with the preparation of the application form and
exposition of their claims, and attend any interview.
If the primary decision by DIMA is to refuse a
protection visa, the service providers may assist with
any further submissions to DIMA and any review
applications to RRT.
B. Observations on the merits
4.9 In addition to contesting the admissibility the
State party argues, in relation to the merits, that there
are no substantial grounds to believe that the author
would be subjected to torture if returned to Somalia.
The author has failed to substantiate his claim that he
would be subjected to torture by members of the
Hawiye and other armed clans in Somalia, or that the
risk alleged is a risk of torture as defined in the
Convention.
4.13 The State party draws the attention of the
Committee to the fact that, in the present case, the
author had the assistance of a migration agent in
making his initial application and that an interview
was conducted with him by an officer of DIMA with
the assistance of an interpreter. In addition, during
the course of the review by RRT of the primary
decision, the author attended two days of hearings
before RRT, during which he was also assisted by an
interpreter. He was not represented by a migration
agent at the RRT hearing, but the State party takes
the view that legal representation before RRT is not
necessary, as its proceedings are non-adversarial in
nature.
4.10 The State party points to the existing domestic
safeguards which ensure that genuine applicants for
asylum and for visas on humanitarian grounds are
given protection and through which the author has
3
Herman Burgers and Hans Danelius, The United Nations
Convention against Torture: A Handbook on the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1988).
4
Ibid.
5
Ibid.
6
Ibid.
7
E/CN.4/L.1470, 12 March 1979, para. 18.
72
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