Jeyakkumar Tirunavukarasu v. Netherlands

The complainant is Jeyakkumar Tirunavukarasu, a Sri Lankan national of Tamil ethnicity born on 26 August 1979. His asylum requests in the Kingdom of the Netherlands have been rejected, and he claims that his deportation to Sri Lanka would constitute a violation by the State party of article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 21 December 1988. The complainant is represented by counsel, Elisabeth Derksen.

On 27 February 2020, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant to Sri Lanka while the communication was being considered by the Committee.

The complainant is a Sri Lankan national born in Jaffna District, Sri Lanka. He joined the Liberation Tigers of Tamil Eelam (LTTE) in 1999, under pressure from the organization and owing to the conditions of poverty in which he grew up. As a member of LTTE, he received basic training and was subsequently trained to use a rocket-propelled grenade firearm. He later joined the Victor anti-tank subdivision, which was a part of the Imran Pandian Regiment. The main task of the regiment was to attack armoured vehicles of the Government of Sri Lanka. In 2000, the complainant participated in the battle of the Elephant Pass. He was a member of the rocket-propelled grenade subdivision until the ceasefire in 2002.

Following the ceasefire agreement and until 2005,³ the complainant exercised several functions in LTTE, including assisting with the defence of the city of Puthukkudiyiruppu, manufacturing clothes in a sewing workshop and participating in the Shankar group in Kilinochchi as a member of the photography department. Subsequently, the complainant was subjected to forced labour for a period of one year and three months by LTTE for having left LTTE-controlled areas to visit his family without obtaining official permission. The period of forced labour ended in August 2006.

3. The complainant has not provided a specific date. ↩

Following the revival of the armed struggle between LTTE and the Government of Sri Lanka, the complainant was forced to rejoin the rocket-propelled grenade commando and was told that he would be able to leave LTTE after a year of service. On 25 December 2007, the complainant was seriously injured in an attack and was temporarily partially paralysed, which prevented him from participating in combat-related activities. He became an assistant to Bavan, an LTTE member who oversaw a group of 44 members of the rocket-propelled grenade commando. In mid-2008,⁴ the complainant was granted permission to leave LTTE, with the caveat that he could be called to duty again if necessary.

4. The complainant has not provided a specific date. ↩

On 21 October 2008, the complainant married in a traditional ceremony in the town of Kilinochchi, Sri Lanka. He claims that he had to flee his home repeatedly and ended up in a closed refugee camp from which he and his wife escaped with the help of his uncle, who managed to obtain the required passports and visas. The complainant and his wife moved to India, where they were legally married and lived until 2012. However, the complainant encountered problems with the Indian Intelligence Service, called “Q Branch”, owing to his past affiliation with LTTE. The complainant fled to the Kingdom of the Netherlands but did not have sufficient financial resources to pay for the trip for his pregnant wife, who returned to Sri Lanka.

The complainant’s requests for asylum in the Kingdom of the Netherlands were denied twice; he was ordered to leave the country, and a travel ban was imposed. He contacted the International Organization for Migration (IOM), seeking their assistance with his voluntary return to Sri Lanka. As part of the procedure for voluntary return, IOM arranged a meeting on 26 May 2017 between the complainant and the Embassy of Sri Lanka in The Hague so that he could obtain the necessary travel documents. The meeting, which was conducted partly in Sinhala, a language which the complainant does not understand, was recorded by the complainant, as he was convinced that he was still at risk if he returned to Sri Lanka, owing to his past affiliation with LTTE. During the meeting, Embassy personnel made several statements that scared the complainant, confirming that the authorities were aware that he and some members of his family were members of LTTE, which could cause problems upon his return to his country of origin. The Embassy of Sri Lanka invited the complainant for a second interview, which frightened him, and he discontinued the voluntary return process with IOM. Given the new circumstances, the complainant filed a new asylum procedure, which was again rejected by the national authorities.

The complainant claims that his forcible return to Sri Lanka would constitute a violation by the State party of article 3 of the Convention.

The complainant alleges that the migration and judicial authorities erred in their assessment that there is no real, personal and imminent risk for him to be subjected to torture if he were to be returned to his country of origin. He submits that the Council of State of the State party is of the opinion that the only Tamil activists who run a real risk of treatment contrary to article 3 of the Convention are those who play a significant role in organized separatist activity outside Sri Lanka, such as working towards an independent Tamil State or the resurrection of armed conflict in the country. The complainant also argues that the national authorities did not attach any value to the recording of the conversation at the Embassy of Sri Lanka in The Hague.

The complainant contends that the risk factors to which he is subjected were assessed separately by the authorities, while, according to his understanding of the jurisprudence of the European Court of Human Rights, the risk factors must be viewed in relation to each other in the light of the general situation in Sri Lanka. In that regard, the complainant specifies that there are several risk factors that apply to his situation. First, he invokes the fact that he is known to the Sri Lankan authorities as a member of LTTE or is suspected of participating in activities for LTTE. Second, he adds that he has scars, that he must return to Sri Lanka from a centre where funds are raised for LTTE and that he left the country illegally. Moreover, the complainant notes that he is not in possession of an identity document and the authorities are aware that he has applied for a temporary asylum residence permit abroad. Furthermore, he points out that Sri Lankan authorities are aware that some of his family members are active with LTTE and that he has participated in political activities in the Kingdom of the Netherlands. Lastly, he explains that he engaged in the procedure for voluntary return merely to avoid a forced return.

On 26 August 2020, the State party submitted its observations on the merits of the communication. It states that it has complied with the request, issued in accordance with rule 114 (1) of the Committee’s rules of procedure, not to deport the complainant while the case is under consideration by the Committee. It holds that it does not challenge the admissibility of the communication but contends that deporting the complainant to Sri Lanka would not constitute a violation of article 3 of the Convention.

Regarding the facts of the communication, the State party clarifies certain aspects of the complainant’s asylum procedures. It notes that Mr. Tirunavukarasu entered the Kingdom of the Netherlands on 6 May 2012 and submitted an application for asylum the same day. It explains that two interviews were held during that procedure, with the assistance of an interpreter, and that the complainant was provided with the opportunity to make written substantive changes to the reports of the interviews, which he did. Moreover, the complainant responded in writing to a notification of intent to deny the asylum application. On 14 March 2013, the first asylum application was denied. The complainant filed an application for judicial review, which was declared manifestly ill-founded on 24 February 2015 by the Administrative Jurisdiction Division of the Council of State. On 29 May 2015, the complainant filed a criminal complaint for trafficking in persons and, on 22 July 2015, he applied for a special residence permit for victims of trafficking in persons, which was approved on 5 August 2015. On 18 December 2015, the complainant’s temporary residence permit was withdrawn, and the criminal investigation was closed owing to lack of evidence. The complainant lodged an appeal against the decision with the Administrative Jurisdiction Division, which found the appeal manifestly ill-founded on 27 June 2016. The State party explains that the complainant filed a second asylum application on 24 March 2016, which was declared inadmissible on 19 May 2016, following a procedure in which the complainant was interviewed and presented additional information in response to the authorities’ intent to deny his asylum application. The complainant submitted an appeal, which was deemed to be ill-founded by The Hague District Court on 16 June 2016. The complainant again appealed against this decision, which was denied by the Administrative Jurisdiction Division on 27 July 2016. The State party notes that, on 16 October 2017, the complainant submitted a third asylum application, taking into account the alleged new elements that arose during the voluntary return procedure with IOM and the meeting at the Embassy of Sri Lanka. On 23 November 2017, the Immigration and Naturalization Service informed the complainant of its decision to deny his application, following another interview and another opportunity to respond in writing to the Service’s declared intent to deny his application. The complainant lodged an application for judicial review, which was granted by the District Court on 2 February 2018, ordering the authorities to reconsider the case in its entirety. On 6 November 2018, the complainant’s asylum application was denied on the grounds that his account in support of his application lacked credibility. Following a request for judicial review, on 21 February 2019, the Immigration and Naturalization Service issued another notification of intent stating that it would deny the application, to which the complainant presented his comments. On 29 March 2019, the third asylum application was denied, to which the complainant lodged another application for judicial review, which was declared to be unfounded by the District Court on 19 May 2019. Against that decision, the complainant lodged an appeal with the Administrative Jurisdiction Division, which was declared unfounded on 12 August 2019. The State party notes that, at this point, the complainant had exhausted all available domestic remedies.

In its comments, the State party points out that the complainant produced different versions of his account in the three different asylum proceedings. It contends that the differences were not mere details and related to his membership of LTTE, the existence of an arrest warrant against him, the asylum application of his brother in Switzerland and other elements. It adds that in the third asylum application, the complainant admitted that his previous statements were false. It also provides information about the applicable Dutch law and policy regarding asylum procedures, which offer a wide scope of protection and ample opportunities, as well as legal remedies to contest and request review of the decisions taken by the authorities.

The State party provides information about the existence of a country-specific asylum policy for Tamil asylum-seekers from Sri Lanka. It refers to the existence of several risk factors, which are viewed in relation to each other and assessed in the light of the general situation in Sri Lanka. It also refers to decisions of the Committee, which state that. while complete accuracy is not expected from the complainant, it is required that the evidence presented by the complainant must be sufficiently substantiated and reliable. It points out that the Committee decided that important inconsistencies or a lack of clarity on issues that are relevant to the assessment of a claim are pertinent to the Committee’s deliberations as to whether the complainant would be in danger of being tortured upon return.⁵ It notes that the Committee cannot review credibility findings unless it is manifest that the evaluation was arbitrary or amounted to a denial of justice⁶ and adds that alleged torture in the past does not necessarily create a substantial risk of persecution for the complainant, but is merely one element in determining whether the complainant faces a present risk of torture. It adds that the complainant has an obligation to provide sufficient evidence that the risk is present and personal.

5. S.P.A. v. Canada (CAT/C/37/D/282/2005); and S.U.A. v. Sweden (CAT/C/33/D/223/2002). ↩
6. Ibid. ↩

Regarding the merits of the communication, the State party argues that due care was exercised throughout the asylum procedures and that due account was taken of article 3 of the Convention. It contends that the complainant was interviewed several times, that his asylum application was assessed in a careful manner and that the necessary legal protection was provided at the national level. It adds that, even though the human rights situation in Sri Lanka creates cause for concern, there is no reason to hold that the general situation is such that all Tamils, whether or not they have had links in the past with LTTE, will be subjected to treatment contrary to article 3 of the Convention upon their return to the country. The State party maintains that the Government has engaged in an individual assessment and repeats that, when information is presented that gives compelling reasons to question the veracity of an asylum-seeker’s submission, the individual must provide a satisfactory explanation for the alleged discrepancies. Moreover, it holds that there are no sufficient grounds for concluding that returning the complainant to Sri Lanka would constitute a violation of article 3 of the Convention. In that regard, it points out that it does not consider the specific reasons that the complainant gave for leaving Sri Lanka to be credible and argues that past membership of LTTE alone does not provide sufficient grounds to conclude that there is a genuine risk of treatment contrary to article 3. It holds that the significance that the complainant attaches to his visit to the Embassy of Sri Lanka is overstated. The State party also questions the impact of the complainant’s arguments related to other risk factors, including the fact that he has scars, the designation of the Kingdom of the Netherlands as a centre of LTTE fundraising and the membership of his relatives in LTTE, as well as the legality of his departure from Sri Lanka and his lack of an identity card. It concludes that the complainant has not satisfactorily established that he would be subjected to treatment contrary to article 3 of the Convention upon his return to Sri Lanka and has not satisfactorily demonstrated that the Sri Lankan authorities have an interest in him. It argues that the communication is unfounded in its entirety and that the decision to return the complainant to Sri Lanka does not constitute a breach of article 3 of the Convention.

On 10 January 2021, the complainant submitted comments on the State party’s observations. He questions whether the State party’s policy related to the procedures for the return of people of Tamil ethnicity to Sri Lanka is adequate, and argues that asylum applications from Tamils, including former LTTE members, are consistently denied. He holds that it is evident from his individual asylum case that he runs a real risk of treatment in violation of article 3 of the Convention upon his return to Sri Lanka and insists that he terminated the voluntary departure procedure through IOM owing to his fear of torture upon return. He insists that it is evident from the tape recording of the meeting at the Embassy that the Sri Lankan authorities want to investigate his ties with LTTE. He notes that his refusal to appear for the second interview cannot be understood by the Sri Lankan authorities as anything other than confirmation of the suspicion that he is an LTTE member who should be further investigated. He adds that he is not an “ordinary” returning migrant or even an “ordinary LTTE member”, but rather a former member of highly specialized parts of LTTE.

The complainant also points out that the Sri Lankan authorities are aware of his application for asylum and reiterates the existence of certain risk factors, including the fact that he has visible scars, that he participated in political events in the Kingdom of the Netherlands and that he will be deported from the Kingdom of the Netherlands, which he insists is known as a centre of people raising funds for the battle in Sri Lanka. The complainant concludes that the Government is wrong to base its decision on the premise that only activists are a focus of the negative interest of the Sri Lankan authorities, and he insists that too little weight is given to his LTTE profile and to the fact that the Embassy of Sri Lanka indicated that he is an LTTE member who should be investigated.

On 17 May 2021, the State party presented further observations on the merits of the communication. It reiterates that it maintains its position that it has not been satisfactorily established that the complainant would be subjected to treatment contrary to article 3 of the Convention upon his return to Sri Lanka. According to its individual assessment of the complainant’s situation, the State party insists that it has determined that, although his statements about joining LTTE as a Tamil man are regarded as credible, his statements about the events that took place, and about why and how he left the country are not considered credible. It points out that the fact that IOM terminated the application for voluntary departure due to insufficient collaboration of the complainant does not mean that the authorities will see him as a threat to national unity. It adds that the transcript of the visit to the Embassy does not in any way suggest that the Sri Lankan authorities have started an investigation into the complainant.

On 9 November 2021, the author presented additional information, referring to a decision of the Upper Tribunal of the Immigration and Asylum Chamber of the United Kingdom of Great Britain and Northern Ireland⁷ regarding the determination of risks of returning Tamils to Sri Lanka. He argues that the decision adds new risk factors that should be taken into account, significantly lowers the standards for the consideration of sur place political activities and clarifies the details regarding the assessment of the “significant role” of asylum-seekers in LTTE.

7. KS and RS v. Secretary of State for the Home Department, Decision, 27 May 2021. ↩

On 18 January 2022, the State party presented further observations on the merits. Referring to the case of the Upper Tribunal of the Immigration and Asylum Chamber of the United Kingdom cited by the complainant, the State party argues that the complainant failed to explain in what manner this judgment would be relevant to his situation and adds that a single judgment of a third country does not alter Dutch case law.

Before considering any complaint submitted in a communication, the Committee 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.

In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. It notes that, in the present case, the State party has not contested that the complainant has exhausted all available domestic remedies. The Committee therefore finds that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.

The Committee declares the claim under article 3 admissible and proceeds with its consideration of the merits.

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

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 or to cruel, inhuman or degrading treatment.

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 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 at risk 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.

The Committee recalls its general comment No. 4 (2017), according to which the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. Although the risk does not have to be shown to be “highly probable”, the burden of proof generally falls on the complainant, who must present an arguable case establishing that he or she is at personal, foreseeable and real risk.⁸ The Committee also recalls that, in accordance with its general comment No. 4, 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.⁹

8. See, inter alia, A.R. v. The Netherlands (CAT/C/31/D/203/2002), para. 7.3; and Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4. ↩
9. General comment No. 4 (2017), paras. 11, 39 and 50. ↩

In the present case, the Committee notes the complainant’s claim that he would be at risk of treatment in violation of article 3 of the Convention upon his return to Sri Lanka, as he allegedly was an active member of a unit of LTTE that was directly engaged in the armed struggle. The Committee takes note of the complainant’s argument that the State party authorities erred in assessing the various risk factors separately. In addition, the Committee takes note of the statement that the Sri Lankan authorities are aware of the involvement of the complainant and his family members in LTTE and of his request for asylum, as a result of the meeting organized at the Embassy of Sri Lanka in The Hague on 26 May 2017.

The Committee notes that the State party contends that Dutch law and policy regarding asylum procedures provide a wide scope of protection and ample opportunities and legal remedies to contest and request review of the decisions taken by the authorities, that due care was exercised through the asylum procedures and that due account was taken of article 3 of the Convention. The State party also points out that the complainant produced different versions of his account in the three different asylum proceedings and that he admitted that some of his statements were false.

The Committee is aware of the human rights situation in Sri Lanka and the ongoing challenges in that regard. Nevertheless, it recalls that the occurrence of human rights violations in the complainant’s country of origin is not, of itself, sufficient for it to conclude that a complainant would face a personal risk of being tortured.¹⁰ The Committee notes that the complainant had ample opportunity to provide the State party authorities with supporting evidence and additional information about his claims. However, on the basis of the information in the file, the Committee is not in a position to confirm the complainant’s account or to determine the existence of a personal, foreseeable, real and present risk of his being subjected to torture in the event of his return to his country of origin.

10. T.S. v. Netherlands (CAT/C/71/D/896/2018). ↩

On the basis of the information before it, the Committee concludes that the complainant has not convincingly demonstrated that his alleged membership in LTTE and the meeting at the Embassy of Sri Lanka in The Hague on 26 May 2017 attracted the interest of the authorities of his country of origin and determines that the information provided does not demonstrate that he would personally be at risk of torture or inhuman or degrading treatment in the event of his return to Sri Lanka.

Consequently, the Committee concludes that the complainant has not adduced sufficient grounds to enable it to believe that he would run a real, foreseeable, personal and present risk of being subjected to torture upon his return to Sri Lanka.

In the light of the foregoing, the Committee, acting under article 22 (7) of the Convention, concludes that the expulsion of the complainant to Sri Lanka would not constitute a breach of article 3 of the Convention by the State party.