J.X.F.P. v. Australia

The complainant is J.X.F.P., a national of Sri Lanka born in 1981. At the time of submission, his request for asylum in Australia had been rejected and he was facing deportation to Sri Lanka. The complainant claims that, if Australia were to proceed with his deportation, that would violate its obligations under article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 28 January 1993. The complainant is represented by counsel.

On 30 August 2016, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Chairperson, requested the State party to refrain from returning the complainant to Sri Lanka while his complaint was being considered by the Committee. These provisional interim measures were issued for the initial period of 60 days, subject to further justifications to be provided by the complainant. On 14 September 2016, the complainant submitted additional information concerning the risk that would be faced by him upon his return to Sri Lanka, in particular with regard to his relationship with the Liberation Tigers of Tamil Eelam (LTTE) (see paras. 2.1 and 2.2 below). On 27 October 2016, the State party requested the Committee to lift its interim measures request. On 16 November 2016, the Committee, acting through its Rapporteur on new complaints and interim measures, informed the State party that the interim measures regarding the complainant would remain in place and reiterated that it should not remove the complainant to Sri Lanka while his complaint was under consideration by the Committee.

The complainant was born in the village of Pesalai, Mannar District, Northern Province, Sri Lanka. He is a national of Sri Lanka, of Tamil ethnicity and a Christian. In 1992, the complainant and his family⁴ were displaced owing to the civil war in Sri Lanka and lived in Rasta refugee camp in Tamil Nadu State in India. He returned to Sri Lanka with his parents and sister in 1995⁵ and resided in Pesalai. In 2000, he started working with his uncle as a fisherman in Mannar. From 2002 onward, the complainant was forced to work for the LTTE⁶ and, when he was sent to work in Puthukkudiyiruppu towards the end of 2003, he began interacting with the Sea Tigers, the naval wing of the LTTE, who were based in Semmalai. He assisted the LTTE in smuggling weapons and other goods mainly from Indonesian waters to various parts of the northern coasts of Sri Lanka, in particular in Mannar District. He travelled in an LTTE-owned fishing trawler to Indonesian waters with a few other Tamil fishers and at least one LTTE member in civilian clothes. The complainant was paid 10,000 Sri Lankan rupees for each trip to Indonesian waters. The complainant claims to have received weapons training from the LTTE, and to have become a member of the organization, which he says he almost immediately regretted but was at that time being forced to work for the organization and so was not permitted to leave it. At the end of 2004, the complainant took command of a boat Kushum in Kallar, near Mannar. He has provided a photo, reportedly taken in Kilinochchi in July 2006 on the occasion of “Black Tigers Day”, depicting himself with eight individuals, some of whom are claimed to be high-ranking Black Tigers.⁷ At that time, the complainant was a second lieutenant under the battle name Puyalarasan.

4. The complainant’s elder brother has always lived in Mannar District and, unlike the rest of his family, he did not go to Tamil Nadu in the early 1990s. ↩
5. The complainant does not provide any information about the circumstances of his or his family’s return to Sri Lanka. It transpires from his application for humanitarian consideration, submitted to the Minister for Immigration and Border Protection of Australia, that his father still lives in India, his mother died on 13 December 2012 and his elder brother, a fisher in Mannar, lives in Sri Lanka with his wife and children. ↩
6. According to the information presented by the complainant to the Refugee Review Tribunal, the LTTE forced him to smuggle arms by threatening to kill him and his family if he did not do so. ↩
7. The photo was submitted to the Committee by the complainant’s counsel on 14 September 2016. All faces, except for the two high-ranking Black Tigers, have been blurred out, apparently to protect the identity of those depicted in the photo. ↩

Around the end of 2006, the complainant and three other crew members⁸ were arrested by the Indonesian authorities,⁹ after their boat Kushum reportedly suffered engine failure off the coast of Sumatra.¹⁰ They did not tell the Indonesian authorities that they were assisting the LTTE but several bullets were discovered in the boat upon examination. At that time, the complainant denied any knowledge of the existence of the bullets and claimed to the Indonesian authorities that he and other crew members were asylum-seekers who had been left stranded by a people smuggler on the way to Singapore.¹¹ The complainant became depressed and attempted suicide while in immigration detention in Indonesia, where he was held for approximately eight months. While in detention in Indonesia, he learned that his parents and sister had fled to India illegally because they feared that the Sri Lankan authorities would learn of his LTTE involvement and harm them. On 22 August 2007, the complainant was deported to Sri Lanka along with other crew members. Because he was assisted by the International Organization for Migration (IOM) in returning to Sri Lanka, he was not targeted by the Sri Lankan authorities when he landed at the airport with the emergency passport that had been issued by the Sri Lankan Embassy.¹² The next day, officers of the Criminal Investigation Department came to search for the complainant at his house in Pesalai but he was staying at his elder brother’s house at that time. The complainant learned about the visit of the officers from the Criminal Investigation Department from a neighbour and the complainant believes that he was visited in connection with his assistance to the LTTE in their arms-smuggling operations. Around 25 August 2007, the complainant departed from Sri Lanka irregularly by boat to Tamil Nadu, where his parents and sister were living in a refugee camp,¹³ because he feared for his life. He was issued with a refugee card in India on 31 August 2007 and stayed in Sathyamangalam, Erode District, Tamil Nadu, where he worked in a textile factory and as a painter. The complainant stayed in India until he left that country for Australia with the help of a people smuggler on 11 June 2012 because he feared that the Indian authorities would return him to Sri Lanka.

8. According to the information presented by the complainant to the Refugee Review Tribunal, he and four friends took a boat and went to Indonesian waters, because they wanted to live in peace. ↩
9. In his additional submission to the Committee of 14 September 2016, the complainant’s counsel stated that the complainant and other crew members were charged with illegal entry into Indonesia. ↩
10. In his additional submission to the Committee of 14 September 2016, the complainant’s counsel stated that the complainant, who was in command of the boat, was ordered to carry out a transfer of weapons from a large ship off the coast of Indonesia. The crew took charge of the loading operations and took on board approximately 10 tons of arms, weapons and explosives. Although the order received by the complainant was to bring the cargo to Mannar District, the pleas of his fellow crew members to defect from the LTTE led him to change course for the Indonesian coast. It took the complainant and other crew members approximately five hours to throw the cargo overboard, keeping one AK-47 assault rifle and one pistol for their own protection. When the complainant saw land, he partially flooded the boat on purpose by opening the sea line in order to give the appearance that the crew was in distress and needed rescuing. The complainant and other crew members were eventually rescued by a local fisherman, who brought them ashore in two trips. The two weapons wrapped in plastic were buried by the first crew members who reached the shore while the fisherman sailed back to the boat to rescue the complainant and another crew member. Shortly thereafter, the Indonesian police arrived and took the complainant and other crew members to the police station. ↩
11. The State party’s authorities noted that there were some potential inconsistencies regarding dates within the complainant’s statements, in particular insofar as he appeared to recount a particular incident as having happened in 2004 which was very similar to the incident described as taking place in 2006. ↩
12. A Sri Lankan emergency passport was issued on 22 August 2007 by the Sri Lankan Embassy in Jakarta for travel from Jakarta to Colombo via Singapore; it was due to expire on 31 August 2007. ↩
13. The complainant’s mother died in Tamil Nadu on 13 December 2012 and his sister married approximately six months later. ↩

The boat, carrying the complainant and other passengers, was intercepted by Australian authorities and all passengers were taken to Christmas Island on 28 June 2012. On an unspecified date, the complainant was transferred to mainland Australia and was brought to Wickham Point Immigration Detention Centre near Darwin in the Northern Territory. On 22 November 2012, he was granted a bridging visa and released from detention. On 31 December 2012, he lodged an application for a protection visa with the Department of Immigration and Citizenship,¹⁴ stating that he did not wish to return to Sri Lanka, as he might be arrested, tortured and even killed by the Sri Lankan authorities because they suspected him of assisting the LTTE. He also believed that he would be harmed for leaving Sri Lanka illegally and claiming asylum in Australia. On 10 July 2013, the complainant’s application was refused by a delegate of the Minister for Immigration and Citizenship.¹⁵

14. The Department was known as the Department of Immigration and Citizenship from 2007 to 2013 and as the Department of Immigration and Border Protection from 2013 to 2017. The Department is now known as the Department of Home Affairs. ↩
15. The delegate of the Minister for Immigration and Citizenship conducted an interview with the complainant on 25 June 2013, with the assistance of a Tamil interpreter. The delegate considered relevant material such as country information and found that the complainant’s claims generally lacked credibility, showed internal inconsistencies and were not corroborated by independent sources of information. Given the situation in Sri Lanka in 2006 and 2007, the delegate found it implausible that the Sri Lankan authorities would issue an emergency passport to a young, Tamil male, such as the complainant, who would fit the profile of an LTTE fighter, without undertaking vetting or background checks (see para. 2.2 of the present document). As there was an intensification in the war in Sri Lanka against the LTTE fighters, it could reasonably be expected that anyone returning to Sri Lanka, in particular a young Tamil male, would have been subjected to a thorough background check. The complainant should have also been under intense investigation because he claimed that bullets were discovered by the Indonesian authorities in the boat when he and other crew members were arrested. As the complainant was issued with an emergency passport by the Sri Lankan Embassy in Jakarta and allowed to enter the country without any scrutiny at the airport, the delegate concluded that the complainant was not deemed a security risk, contradicting his claim that his involvement in arms smuggling had already been discovered in Sri Lanka. The delegate also did not accept as credible the complainant’s claim that he, as an ordinary local fisherman who has not committed to the LTTE, was engaged by the LTTE to assist in their arms-smuggling operations. According to the country information examined by the delegate, the LTTE had sufficient human and organizational resources to undertake purchasing and smuggling of weapons, which are expensive and vital to the operations of the LTTE, into the territory of Sri Lanka through its own procurement arm, called “the Office of Overseas Purchases”. He found therefore that the complainant was never involved in arms smuggling for the LTTE and that he was never seriously suspected of having links with the LTTE. The delegate was not satisfied that the complainant was of ongoing interest to the Sri Lankan authorities on account of any perceived or discernible affiliation with the LTTE. Furthermore, a visit to the complainant’s house by the officer of the Criminal Investigation Department was not indicative of any serious suspicion against him but part of a normal procedure for returnees. The delegate concluded that the complainant did not have a real chance of being subject to significant harm as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka. ↩

On 16 July 2013, the complainant applied to the Refugee Review Tribunal¹⁶ for a review of the decision of the delegate of the Minister for Immigration and Citizenship. The complainant, who was represented by his registered migration agent, appeared before the Tribunal on 13 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. At the end of the hearing, the Tribunal granted the complainant until 20 January 2015 to provide submissions or other supporting material. The complainant’s representative provided submissions dated 25 June 2013, 27 August 2013 and 19 January 2015. On 19 February 2015, the Refugee Review Tribunal affirmed the decision of the delegate of the Minister for Immigration and Citizenship, refusing to grant the complainant a protection visa.

16. The Refugee Review Tribunal was a specialist external review body that provided full and independent merit reviews of decisions to not grant protection visas. On 1 July 2015, it merged with the Administrative Appeals Tribunal. Decisions which formerly could be reviewed by the Refugee Review Tribunal can now be reviewed by the Migration and Refugee Division of the Administrative Appeals Tribunal. ↩

The Refugee Review Tribunal considered that the complainant’s claims of being recruited by the LTTE and smuggling weapons for the LTTE around Mannar District or from Indonesian waters were not credible because he did not prove his allegation that in 2003, during the peace process talks with the Government of Sri Lanka, the Tamil people in his home village of Pesalai were entirely controlled by the LTTE without the knowledge of the Sri Lankan Army or of the authorities at the a Navy camp that issued the fishing passes in the same village. The Tribunal also considered that the complainant provided only vague evidence in support of his claim that officers of the Sri Lankan Army came to his home to inquire about his activities with the LTTE.¹⁷ In addition, the Tribunal did not accept that the complainant’s parents and sister fled to India because of their fear of the Sri Lankan authorities, owing to the complainant’s activities with the LTTE, given that they fled in August 2006, which was three or four years after he allegedly started his activities with the LTTE. Furthermore, as stated by the complainant, his brother has never left Mannar District and has continued working as a fisher. The Tribunal considered that the complainant’s explanations regarding his detention and fishing activities in Indonesia were inconsistent, as he did not have sufficient knowledge of Indonesian waters. In particular, the Tribunal did not accept that the complainant ever fished in Indonesian waters. For all these reasons, the Refugee Review Tribunal concluded that the complainant was not credible and that his claims were fabricated. It also considered that there was no real chance that the complainant would suffer any ill-treatment because of his claimed association with the LTTE, his Tamil ethnicity or as a failed asylum-seeker, if returned to Sri Lanka, as even if he were questioned by the Sri Lankan authorities in relation to his illegal departure and detained for a relatively short period under the Immigrants and Emigrants Act, the detention or imprisonment would not constitute persecution. In addition, real risk of torture or ill-treatment in detention only applied to persons with real or perceived links to the LTTE, and the complainant did not fit that profile.

17. The complainant claimed before the Refugee Review Tribunal that at some point in 2002 or 2003 he was contacted by the Sri Lankan Army and questioned about his activities with the LTTE. He was detained for approximately 24 hours, beaten all over his body with a wet palm cane and then released. ↩

The complainant sought a judicial review of the decision of the Refugee Review Tribunal at the Federal Circuit Court of Australia but the application was dismissed on 7 October 2015. The complainant then appealed against this decision to the Federal Court of Australia but the appeal was dismissed on 16 February 2016. On 12 March 2016, the complainant made a request for a ministerial intervention under section 417 of the 1958 Migration Act. This request was rejected on 31 March 2016 for not meeting the Minister’s guidelines for referral. The complainant therefore claims that he has exhausted all available domestic remedies.

The complainant submits that if he is returned to Sri Lanka, he faces a real risk of being tortured and suffering cruel, inhuman, degrading treatment and punishment at the hands of the Criminal Investigation Department. Therefore, Australia would violate article 3 of the Convention, in particular the non-refoulement obligation. In addition, he claims that the Government of Sri Lanka now controls the entire country and persons who left the country illegally and failed asylum-seekers are immediately detected upon arrival at Colombo Airport and taken into custody by the Sri Lankan authorities.

The complainant further claims that there are substantial grounds to believe that he would be at real risk of torture if he is returned to Sri Lanka, as the Criminal Investigation Department and Terrorism Investigation Division of the Sri Lankan Police and the military intelligence of the Sri Lankan Army are well known for using confessions as a means of securing convictions and of using torture during the interrogation process leading to a confession. The complainant also states that the rule of law in Sri Lanka is still of grave concern and provides evidence from several reports in this regard.¹⁸

18. See, for example, A/HRC/34/54/Add.2. ↩

In relation to the decision of the Refugee Review Tribunal (see para. 2.5 above), the complainant indicates that it has been proved that Mannar Island was under the control of the LTTE in 2003 and was also the location of a Sri Lankan Navy base.¹⁹ He further provides background information indicating that Tamil failed asylum-seekers with links to the LTTE have recently been tortured after their return to Sri Lanka²⁰ and have been victims of sexual violence.²¹ The complainant submits that his past involvement with the LTTE, as an arms smuggler between Indonesian waters and various parts of the northern coasts of Sri Lanka for several years, combined with the fact that the Sri Lankan authorities will be alerted regarding his return, owing to the issuance of a temporary travel document,²² would place him at grave risk of torture or ill-treatment upon his return to Sri Lanka.

19. TamilNet, “Damaged boats keep Indian fishermen trapped in Mannar”, 22 May 2003. Available at http://www.tamilnet.com/art.html?catid=13&artid=9042. ↩
20. International Truth and Justice Project, “Silenced: survivors of torture and sexual violence in 2015” (1 June 2016). ↩
21. Ibid.; and Yasmin Sooka, The Bar Human Rights Committee of England and Wales and the International Truth and Justice Project, Sri Lanka, An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009–2014 (March 2014). ↩
22. Immigration and Refugee Board of Canada, “Response to Information Request. Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport Research Directorate, Immigration and Refugee Board of Canada, Ottawa” (22 August 2011). ↩

On 27 October 2016, the State party challenged the admissibility of the complaint, arguing that certain claims made by the complainant were inadmissible ratione materiae, and that all of his claims were manifestly unfounded, pursuant to rule 113 (b) of the Committee’s rules of procedure. The State party also recalled that, further to the rejection of the complainant’s protection visa application, he was residing unlawfully in the community.

The State party submits that the obligation of non-refoulement under article 3 of the Convention is confined to circumstances in which there are substantial grounds for believing that the returnee would be in danger of being subjected to torture.²³ The State party further submits that the Committee has maintained a distinction between torture and treatment that does not meet that threshold, including cruel, inhuman or degrading treatment or punishment, for the purposes of determining whether article 3 of the Convention is engaged. It considers, therefore, that article 3 of the Convention does not apply to the complainant’s claims, which do not reach the threshold of the definition of torture in article 1 of the Convention. Consequently, they do not constitute claims that the complainant is a victim of a violation by the State party of a provision of the Convention, contrary to the requirements of rule 113 (a) of the Committee’s rules of procedure. In particular, this concerns the complainant’s claims regarding fear of targeting, harassment, death threats and cruel, inhuman or degrading treatment or punishment by the Sri Lankan authorities, including the Criminal Investigation Department and Terrorism Investigation Division of the Sri Lankan Police and the military intelligence of the Sri Lankan Army, for re-entering the country after leaving illegally and on the basis of his alleged involvement with the LTTE.

23. General comment No. 1 (1997) on the implementation of article 3 in the context of article 22. At its sixty-second session, the Committee adopted general comment No. 4 (2017) on the implementation of article 3 in the context of article 22, which supersedes general comment No. 1. ↩

The State party recalls the complainant’s claims that his profile as an LTTE smuggler could result in an imputation that he was involved in the resurgence of the organization, as well as the claim that those strongly suspected of having information wanted by security forces, for example about LTTE elements or groups either in Sri Lanka or outside it, were vulnerable to torture as a means of extracting that information. The State party argues, however, that the complainant’s own account of his past experiences undermines the suggestion that he may be at risk of torture upon return to Sri Lanka. In his initial submission to the Committee, the complainant acknowledged that he did not experience any difficulties with his return to Sri Lanka from Indonesia in 2007, which was facilitated by IOM. Furthermore, while the complainant alleges that a neighbour informed him that persons who might have been from the Criminal Investigation Department had come looking for the complainant previously, nothing in that allegation indicates any attendant risk of torture.

The State party further recalls that the complainant’s submissions refer only to threats, including death threats, under the heading “infliction of severe pain or suffering”, claiming that such threats were capable of constituting torture for the purposes of article 3 of the Convention. The State party submits in this regard that it is unclear how these statements relate to the complainant’s personal circumstances. The statements are also not sufficient for advancing the complainant’s claim under article 3 of the Convention, since the obligation of nonrefoulement under the provision in question is confined to circumstances in which there are substantial grounds for believing that the returnee would be in danger of being subjected to torture. The State party states that it is unaware of the Committee having formed the view that threats alone, including death threats, meet the elements required for an act to constitute torture under article 1 of the Convention.²⁴

24. R.S. et al. v. Switzerland (CAT/C/53/D/482/2011), para. 8.4. In A/52/44, para. 257, the Committee established, however, that threats, including death threats, in combination with restraining in very painful conditions, hooding under special conditions, sounding of loud music for prolonged periods, sleep deprivation for prolonged periods, violent shaking, and using cold air to chill could constitute torture, as defined in article 1 of the Convention. ↩

The State party further submits that the complainant’s non-specific claims about the risk of cruel, inhuman or degrading treatment or punishment at the hands of the Criminal Investigation Department are inadmissible ratione materiae and do not engage its non-refoulement obligations under article 3 of the Convention. The State party also submits that the complainant’s claims that even if he were released by the Criminal Investigation Department without significant problem, he would still be vulnerable to harassment on his return to his house do not reach the threshold of torture, within the meaning of article 1 of the Convention. The Committee should, therefore, find these claims inadmissible ratione materiae but, even if it does not, the State party submits that all the complainant’s claims are inadmissible under rule 113 (b) of the Committee’s rules of procedure as being manifestly unfounded.

The State party recalls that, under article 3 of the Convention, the complainant bears the onus of proof²⁵ to demonstrate that there are substantial grounds for believing that he would be in danger of being subjected to torture.²⁶ This element requires that the complainant demonstrate a foreseeable, real and personal risk of being subjected to torture.²⁷ This risk must be “assessed on grounds that go beyond mere theory and suspicion”.²⁸ The State party submits that this element also requires the complainant to show that the harm he or she asserts as the basis for the substantial grounds be harm which meets the definition of torture in article 1 of the Convention.

25. A.R. v. Netherlands (CAT/C/31/D/203/2002), para. 7.3. ↩
26. Paez v. Sweden (CAT/C/18/D/39/1996), para. 14.5. ↩
27. A.R. v. The Netherlands, para. 7.3. ↩
28. Ibid. ↩

In this context, the State party submits that, after considering the evidence, the complainant’s submissions and country information, the Refugee Review Tribunal did not accept that the complainant had any association with the LTTE in Sri Lanka, including arms smuggling around Mannar or from Indonesian waters. It did not accept that the authorities in Mannar, including the Army, Navy or the Criminal Investigation Department, suspected that the complainant was working for the LTTE or searched for him following his return in August 2007 or would do so in the future. The Tribunal found that the complainant’s claims were fabricated. Lastly, the Tribunal did not accept that there was a real chance that the complainant would suffer serious harm or that there was a real risk that he would suffer significant harm because of his claimed association with the LTTE before he left Sri Lanka in 2007 or because he was a Tamil fisherman from Mannar. The Tribunal accepted that the complainant, as a Tamil failed asylum-seeker from Australia who left Sri Lanka illegally in 2007, might be questioned by the Criminal Investigation Department or other Sri Lankan authorities upon return to Mannar, but did not accept that that there was a real chance that he would suffer serious harm or that there was a real risk that he would suffer significant harm as a result, or during any period of detention or imprisonment. Furthermore, in his initial submission to the Committee, the complainant acknowledged that he had not experienced any difficulties with his return, facilitated by IOM, to Sri Lanka from Indonesia in 2007 when the Sri Lankan Government had issued him with an emergency travel document for this purpose.

The State party submits that the country information sources and extracts referred to by the complainant in his initial submission to the Committee contain a mix of generalized information about Sri Lanka and information about specific cases. The extracts addressed in his complaint, however, focus on allegations of mistreatment by the Criminal Investigation Department and Terrorism Investigation Division of persons suspected of having links to the LTTE. The complainant does not claim or demonstrate that his personal circumstances are similar to those of the people in these cases. Furthermore, his submissions do not specify how any of the country information is relevant to his own circumstances or that the country information indicates that he would be at risk of torture under article 3 of the Convention if returned to Sri Lanka. While the complainant claims, in his submissions, that he would be subjected to torture by the Criminal Investigation Department, Terrorism Investigation Division or military intelligence of the Sri Lankan Army and might also be targeted or later harassed on the basis of perceived links to the LTTE, he does not establish the reasoning behind this or explain the relevance of the country information with any degree of specificity to his own situation.

The State party adds that the complainant did, in domestic proceedings in Australia, claim to fear persecution on the basis of suspected LTTE links and extortion because he was a member of a particular social group (namely, people considered to be wealthy), but he has not persisted with these claims in his current submissions before the Committee. The extortion claims were considered and rejected by the Refugee Review Tribunal on the basis this was a “cut and paste” submission, as the complainant had not actually made the claim and his circumstances did not support such a claim. The Tribunal noted that, among other things, the complainant’s claims regarding smuggling for the LTTE were not credible for a variety of reasons, including the vagueness and inconsistency of his claims, lack of specificity regarding his duties and fabrication of evidence.

The State party submits that in order to show that it would be in breach of its non-refoulement obligations under article 3 of the Convention, an individual must be found to be personally at risk of such treatment should he or she be returned. The complainant, however, has failed to provide evidence that he would be personally at risk of torture and the country information referred to by him is clearly not relevant to his own circumstances.

The State party submits that the claims made by the complainant have been thoroughly considered by a series of domestic decisionmakers and found not to engage its nonrefoulement obligations under the Convention. It recalls that the complainant’s submission acknowledges that the Refugee Review Tribunal made serious credibility findings against him but alleges that the Tribunal was mistaken in its characterization of the situation during the civil conflict in the area where the complainant lived. The State party argues that this criticism of the Tribunal’s decision is unwarranted. The Tribunal determined that the complainant’s claims for protection were not substantiated and found that his account of events on which his claims for protection were based was not credible. The State party adds that neither the Federal Circuit Court nor the Federal Court found legal error in the decision of the Refugee Review Tribunal. The State party further refers to the Committee’s general comment No. 1 (1997) on the implementation of article 3 in the context of article 22 (para. 9), in which the Committee states that, as it is not an appellate or quasi-judicial body, it gives considerable weight to findings of fact that are made by organs of a State party.

In its additional observations of 11 January 2017, the State party refers to the complainant’s further submission of 14 September 2016, comprising his statement concerning his alleged interaction with the Sea Tigers and a photograph alleged to have been taken in Kilinochchi in July 2006. The State party submits there is nothing in the submission that would lead it to alter its original assessment that the complainant’s claims are inadmissible. The State party cannot authenticate the complainant’s claims regarding the individuals, including the complainant himself, or the situation in the photograph. The complainant’s submission of 14 September 2016 provides a different account of events from that maintained by the complainant during the domestic proceedings and communication to the Committee. Furthermore, the complainant has not provided evidence substantiating the claims made in the submission of 14 September 2016. In the light of this, the State party reiterates its position that the complainant’s claims are not a credible account of the facts.

The State party further notes that copies of decisions in domestic proceedings relating to the complainant have been provided to the Committee and that the decisions present a thorough record of the State party’s robust consideration of the complainant’s claims.

On 18 January 2017, the complainant submitted his comments on the State party’s observations, arguing that contrary to the State party’s assertion, the communication falls within the Committee’s jurisdiction ratione materiae, because torture as defined by the Convention was involved; such torture would be carried out by authorities under the Government of Sri Lanka, namely either the Criminal Investigation Department or Terrorism Investigation Division of the Sri Lankan Police or military intelligence of the Sri Lankan Army; and it would be intentional, namely aimed at extracting information or a confession from the complainant.

The complainant accepts and recognizes that the matter must concern torture rather than cruel or inhuman treatment or severe pain and suffering. He also acknowledges that he did frame some elements of his complaint in terms of a lesser risk but did claim that the risk of torture was present and continues to affirm that as the central element of his complaint.

The complainant submits that he would face greater risk upon his return to Sri Lanka in 2017 compared with the risk he would have faced in 2007. He alleges, in particular, that suspicions of arms smuggling directed at a man who has been out of Sri Lanka for such a long period would be much stronger than they might have been in 2007. Furthermore, according to the complainant, the focus of the Government of Sri Lanka has moved to preventing the resurgence of the LTTE beyond the country’s borders²⁹ and he might be suspected of knowing of arms caches, monies and contacts in other countries. The complainant reiterates his initial claims that, owing to his illegal departure and involvement with the LTTE as an arms smuggler, he would be detained at the airport for an indeterminate period of time and that during the detention he would be interrogated and subjected to torture. The complainant adds to his previous claim he would be harassed on returning to his house and that he would also be subjected to abduction and interrogation with torture, as a result of his involvement with LTTE.

29. Home Office of the United Kingdom of Great Britain and Northern Ireland, Country Information and Guidance – Sri Lanka: Tamil separatism version 2.0 (May 2016), available at https://www.refworld.org/docid/573eab154.html. ↩

The complainant also argues that, owing to his history of mental health issues during his detention in Indonesia (see para. 2.2 above), he should have been treated by the State party’s authorities and courts as a vulnerable person pursuant to the “Guidance on vulnerable persons”.³⁰ The Guidance proposes strategies for dealing with persons with impairments, which are associated with psychological and psychiatric conditions³¹ and, more specifically, for those associated with torture and other traumatic experience,³² in which detention is specifically mentioned. Those with post-traumatic stress disorder may “supress aspects of the traumatic event [and] have vivid memories of other aspects of the event. … This may lead to apparent inconsistencies and/or inability to present a chronologically intact account”.³³ The complainant argues that some of the inconsistencies in responding to questions put to him in the framework of the asylum proceedings were due to his state of mental health but the Refugee Review Tribunal did not take this factor into account when assessing the consistency and credibility of his statements. He adds that the finding of the Refugee Review Tribunal that he was not engaged in smuggling weapons for the LTTE was founded on unreasonable arguments and recourse to so-called expert knowledge about the practices of the navy of Sri Lanka during the civil war that was not within the competency of the Refugee Review Tribunal, and that the Tribunal did not have before it any expert evidence concerning those matters.

30. Migration Review Tribunal and Refugee Review Tribunal, “Australia: guidance on vulnerable persons” (June 2012). ↩
31. Ibid., paras. 64–99. ↩
32. Ibid., paras. 86–94. ↩
33. Ibid., paras. 81 and 93. ↩

The complainant also acknowledges that the photograph provided in his submission to the Committee of 14 September 2016 is not determinative. Nevertheless, it is accompanied by details about other individuals in the photograph and the occasion on which it was taken. He argues that a negative credibility judgment made by the State party (see para. 5.1 above) ignores other details provided by him to accompany the photograph in the spirit of the standard of proof required by the Committee. In the light of this, the complainant urges the Committee to find that there is a risk for him of torture at the hands of government agents if he were to be returned to Sri Lanka.

On 24 March 2017, the State party provided its observations on the complainant’s submission of 18 January 2017, stating that there is no information in that submission to alter the State party’s original assessment that the claims are inadmissible. This assessment also applies to the complainant’s assertion that the circumstances in Sri Lanka have changed and that the current focus of the Government of Sri Lanka is on the resurgence of LTTE. The State party also maintains its position that the complainant’s claims are not a credible account of the facts.

In particular, the State party submits that the complainant has not provided credible evidence to substantiate his claims that the Sri Lankan authorities suspect or are aware that he was allegedly smuggling arms for the LTTE or that there is a foreseeable, real and personal risk that he will be tortured. These claims were not accepted during extensive domestic proceedings in Australia, which examined both the merits and justiciability of the complainant’s claims, including by the Refugee Review Tribunal, the Federal Circuit Court and the Federal Court. The inconsistencies in the complainant’s claims and the implausibility of some of those claims have been addressed previously by various decision and review mechanisms.

The State party disagrees that that the complainant faces greater risk upon his return to Sri Lanka in 2017 than he would have faced in 2007. The country information report on Sri Lanka dated 24 January 2017 and prepared by the Department of Foreign Affairs and Trade of Australia assesses the risk of torture or mistreatment for the majority of returnees as low and continuing to decrease, including for those suspected of offences under the Immigrants and Emigrants Act of Sri Lanka. Returnees who are suspected of having departed from Sri Lanka in an illegal manner are charged under this Act and undergo standard identity and criminal checks. Once these investigations have been completed, the individual is taken to a magistrate’s court for the next steps to be determined. Those who have been arrested may remain in police custody at the airport office of the Criminal Investigation Department for up to 24 hours after arrival. If a magistrate is not available, for example during the weekend or on a public holiday, the individual charged may be temporarily held at a nearby prison. No returnee who was merely a passenger on a people smuggling venture has yet been given a custodial sentence for leaving the country illegally and, instead, fines have been issued to act as a deterrent to future illegal departures.

Regarding the complainant’s argument that he should have been treated by the State party’s authorities and courts as a vulnerable person pursuant to the “Guidance on vulnerable persons” (see para. 6.4 above), the State party submits that it provides access to health care, including mental health care, for all persons in immigration detention, in a manner equivalent to health care services available in the community in the country. If there had been an apparent deterioration in the complainant’s mental health, he would have been referred for medical assessment and treatment. Similarly, the complainant could have self-referred at any time.

On 3 December 2018, the State party reiterated its observations of 27 October 2016, 11 January 2017 and 24 March 2017, and informed the Committee that, in the light of its detailed consideration of the complainant’s claims and determination that the interim measures requested were unwarranted, the complainant would be removed from Australia in accordance with section 198 of the Migration Act (1958).

The State party also submits that the scanned photograph purporting to identify the complainant as a member of the Sea Tigers , and commemorating “Black Tigers Day” at Kilinochchi in July 2006 and the following claims submitted to the Committee and relating to the complainant’s personal history were not previously submitted to the domestic decision makers: (1) he moved from India to Trincomalee, Sri Lanka in 2002, signed up for the LTTE and was beaten and forced by the LTTE to undergo weapons training when he did not report for duty; (2) he decided to join the Sea Tigers; (3) at the end of 2003 he began training in basic boat mechanics, and navigation and communications codes; (4) around the end of 2004 he took command of a boat; and (5) he was ordered to carry out a transfer of weapons from a large ship off the coast of Indonesia and during that transfer he agreed with other crew members to run away from the LTTE, then navigating to Indonesia where he was detained and charged with illegal entry. The story presented in the communication to the Committee differs materially from the personal story presented by the complainant in his protection visa application and at the Refugee Review Tribunal, as the complainant claimed at the Refugee Review Tribunal that he was forced to work for the LTTE from about 2002, whereas in his communication to the Committee the complainant stated that he voluntarily joined the Sea Tigers. The complainant has not explained the inconsistency nor provided plausible reasons for not providing this information earlier in his domestic proceedings. The State party recalls that it cannot authenticate the complainant’s claims regarding the individuals, including the complainant himself, or the situation in the photograph, and that this documentary evidence is insufficient to substantiate his claims that he was working as an arms smuggler for the LTTE.

The State party refers to the country information report on Sri Lanka dated 23 May 2018 and prepared by the Department of Foreign Affairs and Trade, according to which the risk of torture or mistreatment perpetrated by military, intelligence or police forces has decreased since the end of the civil war and is no longer State-sponsored. The Department of Foreign Affairs and Trade also assesses that, irrespective of religion, ethnicity or other status, or geographical location, Sri Lankans face a low risk of mistreatment that could amount to torture. The Department of Foreign Affairs and Trade further reports that, although penalties for leaving Sri Lanka illegally can include imprisonment and fines, in practice most cases lead to a fine and not imprisonment. Low-profile LTTE members who come to the attention of the Sri Lankan authorities would be detained and might be sent to the one remaining rehabilitation centre. The State party refers to the assessment made by the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment that the living conditions and other benefits are considerably more humane in rehabilitation than in prison.³⁴

34. Preliminary observations and recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment on the official joint visit to Sri Lanka (29 April–7 May 2016). ↩

The State party concludes that the complainant has not provided credible evidence to substantiate his claims that the Sri Lankan authorities suspect that he was allegedly smuggling arms for the LTTE or that there is a foreseeable, real and personal risk that he would be tortured. The State party submits, therefore, that the complainant has not established the existence of additional grounds to show that he is at a foreseeable, real and personal risk of torture or treatment, which would be considered torture under article 1 of the Convention, if returned to Sri Lanka.

In his submission of 14 March 2019, the complainant confirms that he continues to reside in Australia. He argues that his profile as a former arms smuggler for the LTTE implies that he is aware of LTTE arms activity, which is illegal in Sri Lanka. The fear of the resurgence of the LTTE makes the complainant a person of interest and places him at risk of interrogation and torture.

The complainant adds that the failure of the Refugee Review Tribunal to a treat him as a vulnerable person pursuant to the “Guidance on vulnerable persons” led to a negative assessment of his credibility. The complainant further submits that he appeared before the Federal Circuit Court without representation and that the court failed to explain to him its jurisdiction, duties and procedure, in particular that the court could only decide on cases with jurisdictional error and that the complainant had time after the judgment to submit an application for amendment.

The complainant further argues that the prison conditions in Sri Lanka constitute cruel and inhuman treatment and thus fall within the scope of the State party’s treaty non-refoulement obligations, or under the State party’s legal framework, within the scope of complementary protection. The complainant further submits that, although the issue of serious harm under the complementary protection does not arise in situations of short-term imprisonment, prolonged periods of imprisonment increase the risk of interrogation with torture. He argues that the material unfairness by the Refugee Review Tribunal was not accurately presented by the complainant before the Federal Circuit Court owing to a lack of representation. The complainant requests that the consideration of the communication by the Committee be based on the credibility of evidence provided by the complainant rather than on the assessment of the evidence made in the framework of the domestic proceedings.

The complainant reiterates his argument that the situation in Sri Lanka has changed and that there is more focus on the resurgence of the LTTE outside the borders of Sri Lanka than there was in 2007. He submits that he downplayed his willingness to work for the LTTE in his statements on his arrival in Australia in order to not to be identified as a terrorist and to avoid receiving a negative assessment from the Australian Security Intelligence Organisation, which could have led to indefinite detention. The complainant further submits that the clandestine nature of his activities with the LTTE makes it difficult to substantiate his claims.

The complainant further refers to recent reports³⁵ on the increase in monitoring and surveillance by the Criminal Investigation Department and military in the north and east of Sri Lanka owing to the uses sophisticated technology, informants, interconnection between police stations and a watch list. The complainant further argues that the conditions in Sri Lankan prisons do not meet the international minimum standards owing to overcrowding, the unhealthy environment, the frequent use of torture during interrogation, the length of the legal process, the lack of legal advice and lack of medical attention.³⁶ The complainant states that the cases mentioned in the reports of the Department of Foreign Affairs and Trade have been acknowledged to have emerged from complaints outside Sri Lanka and there is little corroborating evidence from within the country. He further submits that the reports of the Department of Foreign Affairs and Trade on the question of local police methods and practice fail to refer to any evidence. The reference to outdated policing methods presumes that new methods are being applied, which is incorrect. The complainant argues, therefore, that it would not be prudent to dismiss the possibility of torture without good reason.

35. See, for example, Department of State of the United States of America, “Sri Lanka 2016 human rights report” (3 March 2017). ↩
36. Preliminary observations and recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, on the official joint visit to Sri Lanka (29 April–7 May 2016). ↩

The complainant concludes by stating that the inadequacy in the reporting mechanism for corrupt behaviour by special police units in addition to the lack of a witness protection programme provides for real risk of torture. The complainant therefore urges the Committee to find that he does face a real risk of torture and that he should not be returned to Sri Lanka.

Before considering any complaint submitted in a communication, the Committee must decide whether the communication 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 communication 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 challenged the admissibility of the complaint on these grounds. Accordingly, the Committee considers that it is not precluded by article 22 (5) (b) from examining the communication.

The Committee notes that the State party challenges the admissibility of the complainant’s claims under article 3 as manifestly unfounded, since the complainant has not substantiated the existence of substantial grounds for believing that he would face a foreseeable, present, personal and real risk of torture if he were returned to Sri Lanka. The Committee considers, however, that the complainant has sufficiently substantiated his claims, for the purposes of admissibility, on the basis of article 3 of the Convention, regarding his risk of being subjected to torture and ill-treatment if returned to Sri Lanka. Accordingly, it declares the communication admissible and proceeds with its consideration of the merits.

In accordance with article 22 (4) of the Convention, the Committee has considered the communication in the light of all the information made available to it by the parties.

In the present case, the issue before the Committee is whether the forcible 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 his 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 in the country of return. However, the Committee recalls that the aim of such determination 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.³⁷

37. See, for example, S.K. et al. v. Sweden (CAT/C/54/D/550/2013), para. 7.3. ↩

The Committee recalls its general comment No. 4 (2017), according to which the Committee will assess “substantial grounds” and consider the risk of torture as foreseeable, personal, present and real when the existence of credible facts relating to the risk by itself, at the time of its decision, would affect the rights of the complainant under the Convention in case of his or her deportation. Indications of personal risk may include, but are not limited to: (a) the complainant’s ethnic background; (b) political affiliation or political activities of the complainant or his or her family members; (c) arrest or detention without guarantee of a fair treatment and trial; (d) sentence in absentia; and (e) previous torture (para. 45). With respect to the merits of a communication submitted under article 22 of the Convention, the burden of proof is upon the author of the communication, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, present, personal and real (para. 38).³⁸ The Committee also recalls that it gives considerable weight to findings of fact made by organs of the State party concerned, however it is not bound by such findings, as it can make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case (para. 50).

38. T.Z. v. Switzerland (CAT/C/62/D/688/2015), para. 8.4. ↩

In the present case, the complainant claims that he would be at risk of treatment contrary to article 3 of the Convention in Sri Lanka, because of his involvement with the LTTE and its Sea Tigers as an arms smuggler, as the Criminal Investigation Department and Terrorism Investigation Division of the Sri Lankan Police and military intelligence of the Sri Lankan Army are allegedly known for using confessions as a means of securing convictions and of using torture during the interrogation process to produce a confession. The Committee also notes the complainant’s claim that he is at risk of harm because of his illegal departure from Sri Lanka and his profile as a failed asylum seeker. The Committee further notes the complainant’s contention that his claims were not comprehensively assessed by the State party on the basis that inconsistencies in his account, in spite of his explanations, formed the foundation of a negative credibility assessment, which in turn negated the probative weight ascribed to his evidence. He asserts therefore that the State party failed to discharge its obligations under the Convention in assessing his risk of refoulement.

The Committee notes the State party’s submission that the complainant’s claims have been thoroughly considered by a series of domestic decision-making processes, including by a delegate of the Minister for Immigration and Border Protection. In addition, the complainant sought judicial review by the Federal Circuit Court and the Federal Court for legal error in the decision of the Refugee Review Tribunal. The Committee notes the State party’s submission that the competent domestic authorities and courts established that the complainant’s claims were not credible and did not engage the State party’s non-refoulement obligations and that the complainant would not be at risk of treatment contrary to article 3 of the Convention in Sri Lanka.

The Committee further notes that some of the complainant’s claims and pieces of corroborating evidence were submitted only to the Committee, after his refugee claim had been rejected at the domestic level. The Committee notes, however, that the complainant had ample opportunity to provide supporting evidence and further details of his claims in the course of domestic processes. Nonetheless, he failed to raise at an earlier stage his claims relating, for example, to having joined the Sea Tigers on a voluntary basis and being ordered by the LTTE to carry out a transfer of weapons from a large ship off the coast of Indonesia, as well as the subsequent risks he might face on those grounds. The Committee notes the complainant’s contention that he downplayed his willingness to work for the LTTE in his statements on his arrival in Australia in order not to be identified as a terrorist and avoid a negative initial assessment from the Australian Security Intelligence Organisation, resulting in indefinite detention. The domestic proceedings lasted from December 2012 until March 2016 and it is therefore implausible that the complainant would not have come forward with this important information during that period and no plausible explanation was given by the complainant as to why he decided to reveal that information only in his additional submission to the Committee of 14 September 2016. Furthermore, there seems to be minimal information or evidence supporting the complainant’s claims in that regard.

The Committee further notes the complainant’s claims that he would face harm owing to his illegal departure from Sri Lanka and for seeking protection in Australia. The Committee notes that, on the basis of country information and media reports, the national authorities have observed that the situation for Tamils in Sri Lanka have changed significantly since the complainant came to Australia and concluded that the complainant did not have a profile that would lead to a well-founded fear of persecution on the basis of any imputed LTTE support or links. Regarding the complainant’s claim of returning to Sri Lanka as a failed asylum-seeker, the national authorities found that any fine or punishment for illegal departure would be the result of a law of general application and does not amount to persecution.

With regard to the complainant’s claim relating to his mental health, namely that he became depressed and attempted suicide while allegedly kept in an Indonesian immigration detention for approximately eight months in 2006 and 2007, and his argument that he should have been treated by the State party’s authorities and courts as a vulnerable person pursuant to the “Guidance on vulnerable persons”, the Committee notes the State party’s submission that it provides access to health care, including mental healthcare, for all persons in immigration detention, in a manner equivalent to health-care services available in the Australian community. If there had been an apparent deterioration in the complainant’s mental health, he would have been referred for medical assessment and treatment.³⁹ Similarly, the complainant could have self-referred at any time.

39. See, for comparison, N.S. v. Australia (CAT/C/73/D/971/2019), para. 8.9. ↩

In the light of the considerations above, and on the basis of all the information submitted to it by the complainant and the State party, including on the general situation regarding human rights in Sri Lanka, the Committee considers that, in the present case, the information in the file does not allow it to conclude that the complainant’s return to Sri Lanka would expose him to a real, foreseeable, personal and present risk of being subjected to torture, or that the authorities of the State party failed to conduct a proper investigation into his allegations.

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 violation of article 3 of the Convention.