State party’s observations not raise a “serious question to be tried”. Special leave was sought to appeal to the full bench of the High Court, but that request was also dismissed. 4.1 On 18 November 1998, the Committee, acting through its Special Rapporteur on new communications, transmitted the communication to the State party for comment and requested the State party not to expel the author while his communication was under consideration by the Committee. 2.7 The author states that he has exhausted all available domestic remedies and underlines that, while he could still technically seek special leave from the High Court, his imminent removal would stymie any such application. He further indicates that the legal representatives initially provided to him by the authorities clearly failed to act in their client’s best interest. As the submitted documents reveal, the initial statement and the subsequent legal submissions to RRT were undoubtedly inadequate and the representatives failed to be present during the author’s hearing with the Tribunal in order to ensure a thorough investigation into his history and the consequences of his membership of the Shikal clan. 4.2 By submission of 16 March 1999, the State party challenged the admissibility of the communication, but also addressed the merits of the case. It informed the Committee that, following its request under rule 108, paragraph 9, the expulsion order against the author has been stayed while his communication is pending consideration by the Committee. A. Observations on admissibility The complaint 4.3 As regards the domestic procedures, the State party submits that although it considers that domestic remedies are still available to the author it does not wish to contest the admissibility of the communication on the ground of non-exhaustion of domestic remedies. 3.1 The author claims that his forced return to Somalia would constitute a violation of article 3 of the Convention by the State party and that his background and clan membership would render him personally at risk of being subjected to torture. He fears that the Hawiye clan will be controlling the airport on his arrival in Mogadishu and that they will immediately ascertain his clan membership and the fact that he is the son of a former Shikal elder. They will then detain, torture and possibly execute him. He is also fearful that the Hawiye clan will assume that the author, being a Shikal and having been abroad, will have money, which they will attempt to extort by torture and other means. 4.4 The State party contends that this communication is inadmissible ratione materiae on the basis that the Convention is not applicable to the facts alleged. In particular, the kind of acts the author fears that he will be subjected to if he is returned to Somalia do not fall within the definition of “torture” set out in article 1 of the Convention. Article 1 requires that the act of torture be “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”. The author alleges that he will be subjected to torture by members of armed Somali clans. These members, however, are not “public officials” and do not act in an “official capacity”. 3.2 It is emphasized that in addition to the particular circumstances pertaining to the author’s individual case, Somalia is a country where there exists a pattern of gross, flagrant or mass violations of human rights. In expressing its opinion in the author’s case, the Regional Office of UNHCR for Australia, New Zealand, Papua New Guinea and the South Pacific stated that “(w)hile it is true that UNHCR facilitates voluntary repatriation to socalled Somaliland, we neither promote nor encourage repatriation to any part of Somalia. In respect of rejected asylum-seekers from Somalia, this office does urge States to exercise the utmost caution in effecting return to Somalia.”1 Reference is also made to the large number of sources indicating the persisting existence of torture in Somalia, which would support the author’s position that his forced return would constitute a violation of article 3 of the Convention. 4.5 The Australian Government refers to the Committee’s decision in G.R.B. v. Sweden, in which the Committee stated that “a State party’s obligation under article 3 to refrain from forcibly returning a person to another State where there were substantial grounds to believe that he or she would be in danger of being subjected to torture was directly linked to the definition of torture as found in article 1 of the Convention.”2 4.6 The State party further submits that the definition of torture in article 1 was the subject of lengthy debates during the negotiations for the Convention. On the issue of which perpetrators the Convention should cover, a number of views were expressed. For example, the delegation of France 1 2 Communication N° 83/1997, G.R.B. v. Sweden, 15 May 1998, para. 6.5. Letter dated 7 September 1998 addressed to the author's counsel. 71