Communication N° 120/1998 Submitted by: Sadiq Shek Elmi Alleged victim: The author State party: Australia Date of adoption of Views: 14 May 1999 Subject matter: deportation of complainant to Somalia involving risk of torture by nonState entities continuously moved around the country for reasons of security, travelling to places that he thought would be safer. He avoided checkpoints and main roads and travelled through small streams and the bush on foot. Procedural issue: none Substantive issue: risk of torture after deportation 2.4 The author arrived in Australia on 2 October 1997 without valid travel documents and has been held in detention since his arrival. On 8 October 1997, he made an application for a protection visa to the Department of Immigration and Multicultural Affairs. Following an interview with the author held on 12 November 1997, the application was rejected on 25 March 1998. On 30 March 1998, he sought review of the negative decision before the Refugee Review Tribunal (RRT), which turned down his request for a review on 21 May 1998. The author subsequently appealed to the Minister for Immigration and Multicultural Affairs who under the Migration Act has the personal, non-compellable and non-reviewable power to intervene and set aside decisions of RRT where it is in the “public interest” to do so. This request was denied on 22 July 1998. Article of the Convention: 3 1. The author of the communication is Mr. Sadiq Shek Elmi, a Somali national from the Shikal clan, currently residing in Australia, where he has applied for asylum and is at risk of expulsion. He alleges that his expulsion would constitute a violation by Australia of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is represented by counsel. The facts as submitted by the author 2.1 The author was born on 10 July 1960 in Mogadishu. Before the war he worked as a goldsmith in Mogadishu, where his father was an elder of the Shikal clan. The author states that members of the Shikal clan, of Arabic descent, are identifiable by their lighter coloured skin and discernable accent. The clan is known for having brought Islam to Somalia, for its religious leadership and relative wealth. The author claims that the clan has not been directly involved in the fighting, however it has been targeted by other clans owing to its wealth and its refusal to join or support economically the Hawiye militia. In the lead up to the ousting of President Barre in late 1990, the author’s father, as one of the elders of his clan, was approached by leaders of the Hawiye clan seeking Shikal financial support and fighters for the Hawiye militia. 2.5 On 22 October 1998, the author was informed that he was to be returned to Mogadishu, via Johannesburg. Amnesty International intervened in the case and, in a letter dated 28 October 1998, urged the Minister for Immigration and Multicultural Affairs to use his powers not to remove the author as planned. In addition, the same day the author submitted a request to the Minister to lodge a second application for a protection visa. In the absence of the exercise of the Minister’s discretion, the lodging of a new application for refugee status is prohibited. 2.6 On 29 October 1998, the author was taken to Melbourne Airport to be deported, escorted by guards from the Immigration Detention Centre. However, the author refused to board the plane. As a result, the captain of the aircraft refused to take him on board. The author was then taken back to the detention centre. On the same day he addressed an additional plea to the Minister in support of his previous requests not to be removed from Australia; it was rejected. On 30 October 1998, the author was informed that his removal would be carried out the following day. On the same date he sought an interim injunction from Justice Haynes at the High Court of Australia to restrain the Minister from continuing the removal procedure. Justice Haynes dismissed the author’s application on 16 November 1998, in view of the fact that the circumstances did 2.2 The author further states that upon refusal to provide support to the Hawiye militia in general, and in particular to provide one of his sons to fight for the militia, his father was shot and killed in front of his shop. The author’s brother was also killed by the militia when a bomb detonated inside his home, and his sister was raped three times by members of the Hawiye militia, precipitating her suicide in 1994. 2.3 The author claims that on a number of occasions he barely escaped the same fate as his family members, and that his life continues to be threatened, particularly by members of the Hawiye clan who, at present, control most of Mogadishu. From 1991 until he left Somalia in 1997, he 70