The complainant is S.T., a national of Sri Lanka born on 13 March 1994. He is awaiting forced removal to Sri Lanka. He claims that his removal to Sri Lanka by Australia would constitute a violation of his rights under articles 1 and 3 of the Convention. He is represented by counsel. Australia made the declaration under article 22 of the Convention on 28 January 1993.
On 23 November 2015, pursuant to rule 114, paragraph 1, of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to expel the complainant while his case was being considered by the Committee. On 10 May 2016, the State party informed the Committee that the complainant remained in its territory in accordance with the Committee’s request.
Factual background
The complainant was born in Miravodai, Valaichenai, Batticaloa District, in the Eastern Province of Sri Lanka, and professes the Hindu faith. He lived with his parents, two sisters and one brother. He completed 10 years of education and worked in construction as a carpenter from December 2010 until he left Sri Lanka. Following the tsunami that struck Sri Lanka in 2005, the complainant and his family moved to a house in Miravodai, a predominantly Muslim village. His father was the head of one or two Hindu temples in Miravodai. For decades, the Muslim and Hindu communities in the village have had clashes over land, in which his father, as a community leader, was involved.
Because of his father’s role within the Hindu community, the complainant was assaulted on multiple occasions by members of the Muslim community. In March 2011, six persons went to the family home and threatened to seize the family’s property. The complainant was dragged from the house, tied up, beaten and left on the side of the road. The complainant and his relatives could not see the faces of the aggressors but knew they were Muslims because of their accent. Many homes of Tamils were looted and burned. In August 2011, on his way home from work, six Muslims assaulted the complainant again and left him unconscious. He received a split lip and injuries to his left arm and neck. He claims that he was found by farmers the following day, and that he did not go to the hospital as it was far away and he was afraid to explain what had happened. Nor did he report the attack to the police, because he feared his aggressors’ reaction. In April 2012, persons who identified themselves as members of the Criminal Investigation Department visited the family home, told them to leave the land and threatened to kill them. The complainant submits that these persons were Muslims; that he filed a report with the police about the repeated assaults; and that the police failed to investigate his allegations and to detain the aggressors. He also made a complaint to the grama sevaka (village headman), without any result. In this connection, he claims that in general Muslims are treated better by the authorities than Tamils and that the Muslim community has close links to members of the Criminal Investigation Department in Valaichenai. As he feared being tortured or killed, he decided to flee to Australia.
On 18 May 2012, the complainant arrived at Christmas Island, Australia, by boat, without a valid visa. He was detained upon arrival as an illegal maritime arrival under the Australian Migration Act.
On 27 August 2012, the complainant filed an application for a protection visa with the Department of Immigration and Citizenship.1 He alleged that if deported to Sri Lanka, he would be persecuted by the Criminal Investigation Department, other authorities and persons of the Muslim faith. He referred to the events that had allegedly occurred prior to his departure and maintained that many Tamils had been killed; that there were frequent round-ups of Tamils and interrogations about their knowledge of the activities of the Liberation Tigers of Tamil Eelam (LTTE), particularly stockpiles of arms; that he had been rounded up in this manner four times since 2010; that he would be persecuted as a failed asylum seeker who left Sri Lanka unlawfully; and that, given this background, he would not be protected by the Sri Lankan authorities because of his Tamil ethnicity. On 8 September, his legal representative added as a ground for asylum that the complainant would be accused of having links with LTTE since he was a Tamil from the militarized East Province, an area with a history of LTTE presence and support.
- The Department of Immigration and Citizenship was renamed the Department of Immigration and Border Protection in 2013. ↩
On 27 September 2012, the complainant was granted a bridging visa by the Department of Immigration and Citizenship and released from detention.
On 1 March 2013, the Department of Immigration and Citizenship rejected the complainant’s request for a protection visa. It found his accounts to be confusing and contradictory and, in particular, that the alleged attacks by Muslims had been fabricated or embellished. The Department noted that the complainant and his family had lived in the same home in Miravodai since 2005 without incident, and found it implausible that they should be targeted by local Muslims or authorities in 2011 or 2012. The Department also found that the complainant did not face a real risk of harm if returned to Sri Lanka on account of his ethnicity or any real or imputed connections to LTTE. In support of this finding, it considered relevant country information,2 which did not indicate that Tamils in Sri Lanka faced persecution merely on account of their ethnicity. It further stated that although the complainant alleged that he had been “rounded up” and questioned by the Sri Lankan authorities regarding stockpiling of munitions by LTTE between 2010 and 2011, he had never been suspected of having any association with LTTE or similar groups and that neither he nor his family had ever had any contact with such groups. Likewise, the Department concluded that the complainant would not be at risk of torture as a failed asylum seeker upon arrival at the airport or in his village. Although reports indicated that Tamil failed asylum seekers were questioned on their return to Sri Lanka upon arrival at Colombo airport and some had been detained, only those with connections to LTTE or links with Tamil nationalist politics were targeted by the Terrorist Investigation Division.3 Finally, it also stated that there were no grounds for believing that the complainant would be at risk of torture if returned because he had left Sri Lanka unlawfully.
- In its decision, the Department of Immigration and Citizenship refers, inter alia, to UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010; United States of America Department of State, Country Reports on Human Rights Practices for 2011: Sri Lanka, 24 May 2012; Danish Immigration Service, Human Rights and Security Issues concerning Tamils in Sri Lanka, October 2010. ↩
- In its decision, the Department of Immigration and Citizenship refers to United Kingdom of Great Britain and Northern Ireland Border Agency, Sri Lanka Country of Origin Information (COI) Report, 7 March 2012 and Human Rights Watch, UK: Suspend Deportations of Tamils to Sri Lanka, 29 May 2012. ↩
The complainant appealed the Department’s decision before the Refugee Review Tribunal and reiterated his previous allegations. Notably, he argued that although his family was not associated with LTTE some members of the Tamil community were, and for that reason his father had been questioned on several occasions by the authorities between 2007 and 2008. During the proceedings, the complainant provided documents in support of his claims, including a letter written by his father indicating that he was told that the Criminal Investigation Department had been making inquiries about the complainant.
On 16 May 2013, the complainant appeared before the Refugee Review Tribunal. During the hearings, the Tribunal highlighted the inconsistences in the complainant’s accounts and sought to clarify them. When he was asked why he thought he would be perceived as being linked to LTTE since he had never been detained on suspicion of such involvement, he answered that his family had been questioned by the authorities several times in 2007 and 2008. When informed that, according to the Office of the United Nations High Commissioner for Refugees (UNHCR) no one was harmed in Sri Lanka simply because they were Tamils, he replied that during the civil war Muslims “could not do anything” to Tamils, but now they were trying to target them. When informed that the reports of torture and other serious harm against returned asylum seekers cited in his submission concerned returnees who were suspected of being LTTE members or supporters or of having some involvement in criminal activities, the complainant replied that he would be harmed because he had left the country illegally. At the end of the hearing, the Tribunal informed the complainant that there were a number of inconsistencies in key elements of his accounts and invited him to clarify them. The complainant stated that his village was very small and that information about the situation there never came to the notice of the outside world, and that because he was mentally disturbed he had been unable to provide the correct information at first. Subsequently, he provided the Tribunal with a written submission, prepared with the assistance of his counsel.
On 27 June 2013, the Refugee Review Tribunal dismissed the complainant’s appeal. The Tribunal stated that it was not persuaded by the complainant’s explanation about the inconsistencies in his account. In relation to his alleged mental difficulties and trauma, it noted that he had not produced any expert opinion in that regard; that he did not claim to have sought any form of counselling or treatment; and that he had actively participated during the hearing and did not display emotional or mental difficulties. The Tribunal accepted the complainant’s allegations that his father was the president of a local Hindu temple or temples and that he might be regarded as a leader among the Tamils in the village, as he had been active in rebuilding a temple. However, it stated that relevant country information, including the source cited by the complainant in his submissions, did not report acts of violence between the Hindu and Muslim communities. In the light of the inconsistencies in the complainant’s accounts, the Tribunal concluded that his allegations about the harm he suffered at the hands of Muslim gangs or Muslim members of the Criminal Investigation Department were not credible.
Concerning the complainant’s allegations of being seen to have links to LTTE, the Tribunal stated that although it accepted that the complainant and his father might have been subjected to some level of questioning by the authorities at various times during the civil war and in its aftermath, there was no evidence that they were suspected of involvement in any way with LTTE. It further noted that the complainant did not allege that he or his family had ever had connections with LTTE or held anti-Government political opinions. In this regard, the Tribunal referred to information provided during the proceedings, such as the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka issued in July 2010 and December 2012, and noted that this information did not indicate that a person would be perceived to be associated or linked to LTTE only because she/he was of Tamil origin from the Eastern Province.
With regard to the alleged risk associated with being a failed asylum seeker, the Tribunal acknowledged the information according to which some failed asylum seekers who had returned to Sri Lanka were reportedly tortured and ill-treated, and that returnees were routinely interviewed at the airport on arrival by the Immigration and Emigrant Department, the State Intelligence Service and the Criminal Investigation Department. However, the reported cases of returnees being tortured involved failed asylum seekers who had a connection or perceived link with LTTE. It also referred to information published in 2013 by the Sydney Morning Herald regarding six returnees from Australia who had allegedly been harassed by paramilitary groups allied to the Government following their release from the airport and their return to their homes in Batticaloa, and noted that those persons claimed that they were campaign workers from the opposition Tamil National Alliance. This was not the complainant’s case. The Tribunal also concluded that the complainant would not be at risk of torture because of his departure from Sri Lanka in breach of its immigration laws. It noted that returnees in that situation might be arrested at the airport and brought before a court to apply for bail; that bail was routinely granted; and that in general the penalties eventually imposed by the courts took the form of fines. Finally, it noted that there was no information to support the complainant’s allegation that he could be at risk because of his Hindu faith.
The complainant provided to the Committee a document stating that on 4 July 2013, his father reported to the Valaichenai police station that the complainant was a supporter of the “Tamil political party in [their] area”; that a group of four persons had gone to his house on 20 March 2012 looking for him; that he did not go out because he feared being attacked; and that after his departure from the country, the persons looked for him again on 7 October and 27 December 2012 and on 2 July 2013.4
- The complainant attaches a copy of the complaint to the police in the Tamil language, with a translation into English attached as an annex. ↩
On 24 July 2013, the complainant filed an application for judicial review before the Federal Circuit Court of Australia and claimed that there was a legal error in the Tribunal’s decision. On 5 September, the complainant attended a directions hearing, with the assistance of a Tamil interpreter but without counsel. The Court gave him leave to file an amended application and to submit further evidence. On 12 December, the Court confirmed the Tribunal’s decision and dismissed the complainant’s appeal. In its decision, the Court noted that the complainant had difficulties in understanding the questions put to him and that he argued that the Tribunal had failed to take into due consideration the evidence submitted by him, in particular a letter from his father that allegedly supported his allegations, and that he had received legal assistance from different professionals during the previous proceedings. In this regard, the Court noted that the legal assistance he had received under the former Immigration Advice and Application Assistance Scheme was of a high professional standard; that he had never previously raised with the Tribunal any issues concerning his legal representation; and that, in the circumstances, it could not be concluded that that element would have had an impact on the outcome of his visa request.
On 31 December 2013, the complainant lodged an application for leave to appeal to the Federal Court of Australia, claiming that the Federal Circuit Court had failed to take his allegations duly into consideration. As the complainant appeared to be unrepresented, the Federal Court adjourned the hearing, originally scheduled for 19 May 2014, to enable him to be referred for pro bono legal assistance and be legally represented in the proceedings. On 1 April 2015, the Federal Court examined the complainant’s allegations and dismissed his appeal, as it found that there had been no legal error in the Tribunal’s decision.
On 7 May or 17 June 2015, the complainant filed an application to the Minister for Immigration and Citizenship to request ministerial intervention under section 417 of the Migration Act of 1958, which was rejected by the Minister on 15 September 2015. The complainant submits that he has thus exhausted domestic remedies.
The complaint
The complainant submits that his deportation to Sri Lanka by the State party would constitute a violation of its obligations under articles 1 and 3 of the Convention, as he would be at risk of being tortured by government officials or members of the Muslim community because of his Tamil ethnicity, his father’s role as a leader and custodian of a Hindu temple in his village and his condition as a failed asylum seeker who left Sri Lanka illegally. Tamils who are failed asylum seekers are particularly vulnerable upon arrival in Sri Lanka. Reports indicate that even those who have had little contact with LTTE have been interrogated, harassed and beaten by the authorities upon their return.5 In this context, the complainant argues that he will probably be detained for a long period without charges, interrogated under torture and kept in poor conditions of detention.
- The complainant encloses a letter from the Head of the Central Performance Office of the United Kingdom Home Office Border Agency dated 6 February 2013, and a report by the Edmund Rice Centre (Australia), entitled “Australian-sponsored torture in Sri Lanka? The unforeseen consequences of supporting a brutal regime to stop the boats at any cost”, 12 August 2015. ↩
The complainant claims that the inconsistencies in his statements made before the Australian authorities were due to his youth, state of anxiety and trauma suffered as a result of his experiences in Sri Lanka. He tried to clarify his accounts before the Refugee Review Tribunal, but his efforts were seriously hampered by the inquisitorial nature of the Tribunal’s interview and the need to speak through an interpreter.6
- The complainant attaches a copy of a document dated 12 May 2014, issued by a person identified as an accredited mental health social worker, which was not submitted to the State party’s authorities previously. ↩
Although the Federal Circuit Court noted that the complainant was an unsophisticated person and did not have legal representation, it nevertheless requested him to specify the legal errors committed by the Tribunal. Therefore, he claims that in practice he had no opportunity to seek review of the Tribunal’s decision by a higher court. In this regard, the complainant argues that he could not afford legal representation and that at the time of the proceedings, public funds were not available for applications for judicial review against the Tribunal. The complainant further submits that the legal assistance provided to him in the proceedings before the Department for Immigration and Citizenship and the Refugee Review Tribunal under the Immigration Advice and Application Assistance Scheme was deficient, and that regular legal aid was usually not granted for these matters.
State party’s observations on admissibility and the merits
On 10 May 2015, the State party submitted its observations on admissibility and the merits of the complaint. It maintains that the complaint is manifestly unfounded and therefore inadmissible under rule 113 (b) of the Committee’s rules of procedure. Should the Committee find that the complainant’s allegations are admissible, the State party submits that there is no supported evidence or substantial grounds for believing that the complainant would be in danger of being tortured if returned to Sri Lanka.
The complainant’s claims were thoroughly considered during the protection visa application by the Department of Immigration and Citizenship and the Refugee Review Tribunal. His case was also examined by the Federal Circuit Court and the Federal Court of Australia, where he sought judicial review for legal errors in the Tribunal’s decision. They were also considered during the ministerial intervention process. These robust domestic processes have considered and determined that the claims were not credible and did not engage the State party’s non-refoulement obligations.
The State party recalls that the Department of Immigration and Citizenship found that the complainant did not face a real risk of harm if returned to Sri Lanka. Subsequently, the Refugee Review Tribunal carried out an external merits review of the Department’s decision. The complainant was present at the Tribunal hearing and was able to make oral submissions with the assistance of an interpreter. He was also represented by a registered migration agent, who made detailed submissions to the Tribunal. During the proceedings, the Tribunal found that there were a number of inconsistencies related to key elements of his account, such as the number and nature of the alleged incidents of harassment in Sri Lanka, the profile of his father, the nature of a land dispute involving his family, his schooling, place of residence and worship and the lack of media reporting of conflict in his village. The Tribunal also considered that documents provided by him in support of his claims (including the two letters from a local parliamentarian and his father, attached to his complaint before the Committee) were selfserving and contradictory. As a result, the Tribunal did not regard them as having any evidentiary weight. Against this background, the Tribunal was not satisfied that he was at risk of harm or persecution because of his Tamil ethnicity, his Hindu faith, his actual or imputed political opinion or his status as a failed asylum seeker or as a Tamil involved in a land dispute. Nor did the Tribunal consider that he would be suspected by Sri Lankan authorities of supporting LTTE.
On 12 December 2013, the Federal Circuit Court dismissed the complainant’s application for judicial review of the Tribunal’s decision, concluding that there was no legal error therein. While not legally represented at the hearings before the Court, the complainant received legal advice in preparing his case, made oral submissions with the assistance of an interpreter and was granted leave to appeal for a review of the Tribunal’s decision. Subsequently, the Federal Court examined and dismissed his claim against that decision. Any disadvantage that he might have faced at the Federal Circuit Court hearings was remedied by the fact that he was granted leave to appeal and was legally represented at the Federal Court.
As to the complainant’s allegation that he would be detained and tortured upon return because of his Tamil ethnicity and his status as a failed asylum seeker who left Sri Lanka illegally, the State party refers to the Tribunal’s decision and maintains that current country of origin information indicates that there may be a risk of torture and mistreatment for returnees who are suspected of having committed serious crimes, including people-smuggling or terrorism offences, which is not the complainant’s case.
Concerning the complainant’s mental health and the document dated 12 May 2014 attached to his complaint (see para. 3.2 above), the State party notes that the Refugee Review Tribunal considered his claim that he was suffering from mental illness, including depression; that at that time, he had not produced any psychological report or attended any counselling sessions; and that on the basis of his behaviour and answers during the Tribunal hearings, the Tribunal found he was not prevented from participating in the proceedings because of mental health issues. Furthermore, the Department of Immigration and Border Protection assessed the allegations regarding the complainant’s mental health and noted that the document dated 14 May 2014 submitted to the Committee (but not to the Australian authorities) was not written by a psychologist or psychiatrist, but by an “accredited mental health social worker”. As such, the Department found that this document could not be considered as evidence sufficient to contradict the findings by Australian authorities that the complainant did not suffer harm in Sri Lanka in the past, and would not suffer harm in Sri Lanka if returned.
With regard to the copy of the complaint allegedly filed by the complainant’s father with the police on 4 July 2013 (not submitted to the Australian authorities; see para. 2.12), the State party notes that the complainant never claimed before Australian authorities to be an active supporter of a Tamil political party. Rather, he maintained that his father’s position as head of a Hindu temple and the tensions between the Hindu and Muslim communities was the motivating factor behind the alleged assaults. If the complainant had been an active supporter of a Tamil political party, he would probably have raised that fact before the State party’s authorities.
The State party maintains that its authorities have specifically and carefully considered whether his condition as a failed asylum seeker may put him at serious risk of torture, taking into account relevant country information contained in the reports of UNHCR, States and well-known non-governmental organizations (NGOs).
Complainant’s comments on the State party’s observations
On 31 August 2016, the complainant provided comments on the State party’s observations. He reiterated his previous allegations and underlined that he suffers from post-traumatic stress disorder as a result of the experiences he and his family suffered in Sri Lanka and his fear of being sent back to his country of origin.7 He also submits that the legal advice he received while preparing his appeal to the Federal Circuit Court was deficient; that this advice mainly helped him to prepare the application in English; and that reference to important basic documents was omitted in the application, such as an affidavit explaining the circumstances why he had missed the deadline for submitting the application.
- The complainant provides a document dated 20 August 2016, issued by S.K., identified as an accredited mental health social worker. ↩
Although the State party’s authorities accepted that a failed asylum seeker might be questioned at the airport, even for extended periods, they did not take into account the well-known proclivity of the Criminal Investigation Department to use torture during interrogations.8 In addition, the Refugee Review Tribunal did not take into account that, in general, the conditions of detention in Sri Lanka’s prisons amount to cruel, inhuman and degrading treatment.
- The complainant refers to the preliminary observations and recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment on his mission to Sri Lanka, undertaken from 29 April to 7 May 2016. ↩
The complainant submits that the Tribunal found that his accounts were not credible because he raised different claims throughout the proceedings. However, this is explained by the effects of the trauma he suffered as a result of the events he allegedly endured in Sri Lanka, his journey to Australia and his detention there.
The complainant points out that Muslim-Tamil conflict over land in the Valaichenai area was reported by at least one NGO in October 2008.9 However, in its decision the Tribunal stated that neither NGOs nor the media had reported such conflict, implying that his allegation was false and, therefore, assessing his credibility negatively. Although he could not provide this information during the domestic proceedings, it was for the Tribunal to carry out research about reports concerning the circumstances surrounding his case.
- The complainant refers to International Crisis Group, Sri Lanka’s Eastern Province: Land, Development, Conflict, Asia Report No. 1589, 15 October 2008, p. 19. ↩
The complainant submits that his father was active in the Tamil National Alliance; that a letter from a local Member of Parliament, submitted to the Tribunal, stated that the complainant was a supporter of the Alliance;10 that he himself stated before the Tribunal that the Sri Lankan authorities were “angry” with him because he was helping his father in his activities; and that he was not questioned about the nature of these activities. Moreover, it should be understood that in a small village, land disputes such as those in which his father was involved inevitably have political consequences.11
The complainant alleges that he initially applied for judicial review of the Tribunal’s decision with the help of members of the Australian Tamil Congress, an organization that is closely allied to the Tamil National Alliance, and that he visited its centre five or six times, as well as attending public meetings for asylum seekers.
State party’s additional observations
On 15 February 2017, the State party reiterated that the complaint is inadmissible and that it does not disclose any violation of the Convention.
As to the complainant’s comments questioning the quality of the legal advice given to him in the preparation of his appeal to the Federal Circuit Court, in particular concerning the failure to provide an affidavit explaining why an extension of the deadline was necessary, the State party notes that the advice was provided after the application had been filed by the complainant in August 2013; that in any case this procedural defect did not prevent the complainant from having his application heard and determined by the Court; and that subsequently he was represented by counsel in his appeal of the Court’s decision to the Federal Court.
The country information reports provided by the complainant, such as the report of the Edmund Rice Centre cited above, do not support his allegations of risk of torture if returned to Sri Lanka. As to the 2016 preliminary observations and recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment on his mission to Sri Lanka, the State party maintains that nothing in the observations of the Special Rapporteur supports the conclusion that the complainant would be detained by the Terrorist Investigation Division, nor has he claimed that he would be at risk of detention by the Division. The Special Rapporteur suggests that torture is a common practice used in a majority of regular criminal investigations and that prison conditions, such as overcrowding and dilapidated buildings, amount to cruel, inhuman and degrading treatment or punishment. However, the observations do not specifically consider the risk of torture associated with the return of persons who have departed Sri Lanka illegally, and it is not clear that the process by which returnees may be charged with illegal departure should be understood as constituting a “regular criminal investigation” as that term is used by the Special Rapporteur. Finally, concerning the report of the International Crisis Group, the State party notes that this report addresses events alleged to have occurred in 2002 and 2003 and does not substantiate the complainant’s claims to have been affected by Tamil-Muslim conflict between 2005 and 2012.
The State party reiterates its observation concerning the complainant’s mental health, and points out that the two documents provided by the complainant to support his allegation of suffering from post-traumatic stress disorder were issued by a social worker. However, social workers are neither trained nor qualified to make medical diagnoses.
The State party points out that the complainant has not provided any relevant evidence showing that he has links with the Australian Tamil Congress, or that the Australian Tamil Congress has links with the Tamil National Alliance. Nor has he articulated how these links relate to his allegations.
Consideration of admissibility
Before considering any complaint submitted in a communication, the Committee against Torture must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any complaint from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that in the present case, the State party has not contested that the complainant has exhausted all available domestic remedies.12 The Committee therefore finds that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.
- See, for example, communication No. 455/2011, X.Q.L. v. Australia, decision adopted on 2 May 2014, para. 8.2. ↩
The State party maintains that the complaint should be declared inadmissible, pursuant to rule 113 (b) of the Committee’s rules of procedure, on the grounds that it is manifestly unfounded. The Committee finds, however, that the complainant has sufficiently detailed the facts and the basis of his claims of violations of the Convention and thus considers that the complaint has been sufficiently substantiated for the purposes of admissibility. As the Committee finds no obstacles to admissibility, it declares the present communication admissible and proceeds to its examination of the merits.
Consideration of the merits
In accordance with article 22 (4) of the Convention, the Committee has considered the present communication in the light of all the information made available to it by the parties concerned.
The issue before the Committee is whether the forced removal of the complainant to Sri Lanka would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (“refouler”) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Sri Lanka. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of the evaluation is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.13
- See, for example, communication No. 550/2013, S.K. and others v. Sweden, decision adopted on 8 May 2015, para. 7.3. ↩
The Committee recalls its general comment No. 1 (1997) on the implementation of article 3 of the Convention, according to which the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. While the risk does not have to meet the test of being highly probable (para. 6), the Committee recalls that the burden of proof generally falls on the complainant, who must present an arguable case that he or she faces a foreseeable, real and personal risk.14 Although, under the terms of its general comment No. 1, the Committee is free to assess the facts on the basis of the full set of circumstances in every case, considerable weight is given to the findings of fact that are made by organs of the State party concerned (para. 9).15
The Committee notes the complainant’s claim that his forcible removal to Sri Lanka would amount to a violation of his rights under article 3 of the Convention, as he would be exposed to a risk of being tortured by government officials or members of the Muslim community on account of his Tamil ethnicity, his perceived links with LTTE, his father’s role as a leader and custodian of a Hindu temple in his village and his status as a failed asylum seeker who left Sri Lanka illegally. He also refers to procedural shortcomings in the proceedings before the Australian authorities and claims, in particular, that he was not legally represented before the Federal Circuit Court of Australia.
The Committee also takes note of the State party’s observation that its authorities reviewed all the allegations and evidence submitted to them by the complainant and determined that most of the claims were not credible. Relevant country information does not report acts of violence between the Hindu and Muslim communities in the years in which the attacks on the complainant by Muslim persons were alleged to have taken place. Its authorities’ decisions also relied on reports that indicate that only those Tamils who are suspected of having links to LTTE face persecution, and the complainant has not demonstrated that he is a person suspected of having such links. Likewise, available country information consulted by the Refugee Review Tribunal does not support the allegation that failed asylum seekers who left Sri Lanka illegally are at risk of torture if they do not have an association or perceived link to LTTE or are suspected of having committed serious crimes. The State party also maintains that the complainant had adequate legal representation throughout the domestic proceedings and that although his counsel was not present at the Federal Circuit Court hearing, he was able to appeal and have his case examined by the Federal Court.
Regarding the complainant’s claim that he risks being subjected to torture upon return to Sri Lanka, the Committee, while not underestimating the concerns that may legitimately be expressed with respect to the current human rights situation in Sri Lanka and the treatment of, inter alia, failed asylum seekers from overseas, recalls that the occurrence of human rights violations in his or her country of origin is not sufficient in itself to conclude that a complainant runs a personal risk of torture.16 In this context, the Committee refers to its consideration of the fifth periodic report of Sri Lanka in 2016,17 when it voiced serious concern about reports suggesting that abductions, torture and ill-treatment perpetrated by State security forces in Sri Lanka, including the police, had continued in many parts of the country after the conflict with LTTE ended in May 2009.18 The Committee has also been concerned at the reprisals against victims and witnesses of acts of torture and at the acts of abduction and torture in unacknowledged detention facilities, and inquired whether a prompt, impartial and effective investigation of any such acts had been undertaken.19
The complainant submits that the omissions and inconsistences in his statements before the Australian authorities referred to by the State party are explained by the effects of the trauma he allegedly suffered as a result of the events he experienced in Sri Lanka. To support this claim, he submitted to the Committee two documents, dated 12 May 2014 and 20 August 2016 respectively, referring to his mental health, written by a person identified as an accredited mental health social worker. However, these documents were not issued by a mental health specialist, are very general, and do not explain the elements on which the conclusion that the complainant suffers from post-traumatic stress disorder is based.
The Committee further observes that despite the acknowledgements by the Department of Immigration and Citizenship and the Refugee Review Tribunal that reports on the human rights situation in Sri Lanka indicated that Tamils suspected of having links to LTTE might be in need of international protection, the complainant merely argued that he would be perceived as having links to LTTE because of his background as a Tamil from the Eastern Province; he did not indicate that he in fact had such links. The complainant also submitted to the Committee a copy of a complaint allegedly filed by his father with the Valaichenai police station on 4 July 2013 (after his request for a protection visa was dismissed by the Tribunal), in which the father maintained that the complainant was a supporter of the Tamil political party of the area. However, the Committee considers that this document itself is not sufficient to establish that the complainant was or is wanted by the Sri Lankan authorities because of his alleged association or perceived links with LTTE. Furthermore, the Committee observes that although the complainant alleges to have been “rounded up” and questioned by the Sri Lankan authorities regarding stockpiling of munitions by LTTE between 2010 and 2011, he was not kept in detention or otherwise subjected to ill-treatment, and his statements do not support the conclusion that the authorities suspected him of having links with LTTE or similar groups. Likewise, the complainant has not provided evidence to indicate that his relatives were subjected to persecution because of his alleged connection with LTTE.
Finally, the Committee observes that the complainant’s application for a protection visa was examined by the Department of Immigration and Citizenship and the Refugee Review Tribunal; that he was provided with legal representation under the Immigration Advice and Application Assistance Scheme; that subsequently he appealed for review of the Tribunal’s decision to the Federal Circuit Court and the Federal Court of Australia; and that while not legally represented at the Federal Circuit Court hearings, he received advice in preparing his application and was represented by legal counsel at subsequent proceedings before the Federal Court. The complainant argues that the legal assistance provided by the State party was deficient. However, his allegations in this respect are very general and do not show that there was a lack of due diligence in providing such assistance such as to have significantly affected the outcome of his application for a protection visa. Nor has he explained how his appearance at the hearing before the Federal Circuit Court without legal representation had a negative impact on the final examination of his case, in view of the fact that his applications for leave to appeal to the Federal Circuit Court and the Federal Court were granted and both courts examined whether the Refugee Review Tribunal had incurred a legal error; and that he had legal representation in the other stages/instances of the proceedings.
In view of the foregoing, the Committee considers that the evidence and circumstances invoked by the complainant do not show sufficient grounds for believing that he would run a real, foreseeable, personal and present risk of being subjected to torture in case of his removal to Sri Lanka. The Committee thus considers that the material before it does not enable it to conclude that the return of the complainant would constitute a violation of article 3 of the Convention.
The Committee, acting under article 22 (7) of the Convention, concludes that the complainant’s removal to Sri Lanka by the State party would not constitute a breach of article 3 of the Convention.