Case: Kindler v Canada (Communication Number 470/1991)
Outcome: referred to
Although it is strictly unnecessary to do so, I should add that I do not accept the applicant's contention that the Minister necessarily erred in her construction and application of the treaty obligations to which she had regard. In Kindler v Canada (Communication Number 470/1991) the United Nations Human Rights Committee said that the relevant question under Article 6 of the ICCPR was whether Canada had exposed "a person within its jurisdiction to the real risk (that is to say, a necessary and foreseeable consequence) of losing his life" contrary to the ICCPR. The Minister approached the matter in this way when she accepted the departmental assessment "that country information did not support the view that torture or death would be a "necessary and foreseeable consequence" of the [applicant's] removal from Australia which is the test for risk set by the United Nations Human Rights Commission." The applicant's allegation of error is founded on a more recent formulation of the test by the Human Rights Committee which, it is contended, rephrases the relevant question such that the "necessary and foreseeable consequence" test should not be read as qualifying the test of "real risk". The two tests are set to be cumulative. Reliance was placed on two of the Committee's decisions in 2006 which related to Canada. The Committee's decisions included statements that: "States parties are under an obligation not to expose individuals to a real risk of being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment" and that "The committee must therefore decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant's removal] there is a real risk that the [applicant] would be subjected to treatment prohibited by articles 6 and 7 [of the ICCPR]." Attention was directed to one of the Committee's decisions in 2004 involving Denmark. There it held that the relevant question was whether expulsion would "expose [the applicant] to a real and foreseeable risk of being subjected to treatment contrary to article 7 [of the ICCPR]". Reliance was also placed on a comparison of the draft and final versions of the Committee's General Comment 31. In none of these instances was the Kindler formulation criticised or rejected. Nor do the formulations which are relied on lend clear support to the applicant's contentions that there are two tests to be applied cumulatively. In any event, even if the more recent expressions of the Committee's understanding of the relevant obligations are to be understood as reflecting a differing view from that previously expressed, it does not follow that the Minster has erred by preferring the opinion expressed in cases such as Kindler . 30 The applicant's second complaint relating to the Minister's treatment of Australia's treaty obligations was that she failed to deal with the test posed by the CAT at all. I am by no means persuaded that this complaint has merit. The Minister's reasons do not refer expressly to either the ICCPR or the CAT. They do, however, refer to " Australia's international obligations ." Moreover, she referred to the department's assessment in which both the ICCPR and the CAT obligations are dealt with. Even if the Minister had failed to give separate or any consideration to the obligations imposed by the CAT, this would not have constituted a jurisdictional error. This is so for at least two reasons. The first is that, if she did not do so, she did not err because she was not bound to have regard to the CAT obligations. The second is that, in any event, the applicant, in written submissions to the Minister, did not seek to suggest that there was anything other than a "real risk" test to be applied in determining whether either or both of the ICCPR and the CAT were engaged. One example was the submission that: "The situation in Lebanon is far from stable and the Department cannot reach a determinative conclusion of whether there is a "real risk" that [the applicant] will face violation of his ICCPR , or CAT, rights upon any return to Lebanon." It is, therefore, hardly surprising that the Minister did not, in terms, deal separately with the CAT obligations once she had explained her reasons for concluding that Australia's international obligations were not engaged. 31 It is common ground that the applicant was not provided with a copy of the reassessment or the issues paper referred to above at [10]. The Minister's reasons do not refer expressly to either document. The applicant argues, nonetheless, that the Minister must have had regard to the reassessment and relied on it because she refers in her reasons to an International Treaties Obligation Assessment "which states that while there was a remote possibility of the risk of torture and/or death if the applicant was to be returned, there was no real risk given the changes in Lebanon since ... July 2005." No such phrasing appears in the initial assessment which was provided to the applicant. It is said that the tests which were to be applied by the Minister in determining whether Australia had non-refoulment obligations to the applicant under the two treaties were formulated differently in the initial assessment, to which the applicant had access, and the reassessment. The comparison is drawn between the questions which are set out above at [8] and what is said in the passages from the reassessment which are extracted in the issues paper: see above at [10]. In particular it is suggested that the formulation of the test in para [118] of the issues paper is confusing and ignores the test posed by the CAT. Complaint is also made that the clarification contained in para [117] in which the department expresses the opinion that the applicant would confront only a "remote possibility" of torture or death if returned to the Lebanon, differs from the initial assessment. In addition, the applicant's solicitor gave evidence that, had she been provided with a copy of the reassessment, she would have made submissions, such as those made in argument in this proceeding, as to the proper construction of the ICCPR and the CAT. However, in cross examination, she conceded that these arguments had not occurred to her at the time that the submissions would have been made in response to the assessment. They occurred to her after the Minister's decision had been made and after counsel had been briefed for the trial.