The complainant is K.S., a national of Sri Lanka born in 1981. His asylum and complementary protection requests in Australia were rejected. He claims that his deportation to Sri Lanka would constitute a violation by Australia of 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, Daniel Robert Taylor.
Facts as submitted by the complainant
The complainant is a Hindu of Tamil ethnicity who was born in Colombo, where he lived until his departure from Australia. The complainant was the only Tamil shop owner at an Asian market in Colombo. He was harassed and persecuted by members of the Criminal Investigation Division of Sri Lanka because of his Tamil ethnicity and the anti-government political opinions attributed to him. Agents of the Division visited his shop frequently, destroyed his merchandise and enquired as to whether he was a member of the Liberation Tigers of Tamil Eelam (LTTE) and how much he knew about its activities.
On 21 November 2009, the complainant was arrested while attempting to flee from Sri Lanka. He was detained on charges of being a member of a terrorist organization, providing assistance to LTTE and departing Sri Lanka illegally. He was released on bail after two months and was sentenced to six months’ imprisonment and hard labour for the crime of illegal departure from the country. The execution of this sentence was later suspended upon payment of a fine.
On 11 August 2012, the complainant arrived in the Cocos (Keeling) Islands, Australia, and applied for a protection visa based, inter alia, on article 3 of the Convention. The application for protection was refused by a delegate of the Minister for Immigration and Border Protection on 24 September 2013. The Administrative Appeals Tribunal refused an appeal on the merits on 26 March 2015. The complainant notes that the Tribunal did not give any weight to the documents that he had presented in support of his application, including a document issued by the International Committee of the Red Cross relating to his detention for a duration of 90 days and documents relating to his sentencing to six months’ imprisonment. The complainant filed an appeal with the Federal Circuit Court of Australia, which was dismissed on 6 June 2018. According to the complainant, the Court found that the Tribunal must be understood to have implicitly rejected the detention documents as either inaccurate or fraudulent. The complainant filed an appeal with the Federal Court of Australia, which was dismissed on 3 December 2018, thereby confirming the assessment made by the Administrative Appeals Tribunal. Subsequently, the complainant sought special leave to appeal to the High Court of Australia, which was refused on 17 May 2019 on the basis that the Federal Court of Australia had applied the correct standard of review. The complainant claims that he has exhausted all domestic remedies.
Complaint
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 argues that the decisions of the authorities, in particular that of the Administrative Appeals Tribunal, do not satisfy the requirements of a fair and impartial procedure, as the authorities did not consider the documents that he had presented in support of his application and did not assess their genuineness. The complainant contends that the Tribunal relied on minor and justifiable inconsistencies in his oral evidence, which was provided under considerable pressure, to reach the finding that he had fabricated all his claims, which resulted in the documents relating to his detention and conviction not being considered.
The complainant maintains that, if returned to Sri Lanka, he would face six months’ imprisonment with hard labour as a result of the reimposition of the suspended sentence, in addition to five years’ imprisonment for the second illegal departure. He adds that he would be subjected to torture in prison for allegedly being a member of a terrorist organization and aiding and abetting LTTE. He argues that he would be intentionally and deliberately subjected to unsafe and unsanitary prison conditions, including overcrowding, that would amount to a form of torture and pose a real risk to his life, health and safety.
State party’s observations on admissibility and the merits
On 21 September 2020, the State party submitted observations on the admissibility and the merits of the communication. It argues that the communication should be declared inadmissible, as the complainant’s claims in respect of a future risk of harm are inadmissible ratione materiae, and adds that the claims are manifestly unfounded pursuant to rule 113 (b) of the Committee’s rules of procedure. Concerning the merits, the State party contends that the claim under article 3 of the Convention is without merit, as it has not been supported by evidence that there are substantial grounds for believing that the complainant would be in danger of being tortured as defined in article 1 of the Convention.
Regarding the admissibility of the communication, the State party argues that, in accordance with the Committee’s jurisprudence,3 the obligation under article 3 of the Convention must be interpreted by reference to the definition of torture set out in article 1. It adds that the obligation of non-refoulement under the Convention is confined to torture and does not extend to cruel, inhuman or degrading treatment or punishment.4 The State party notes that, if it is established that the acts to which a complainant alleges that he or she would be subjected would constitute torture, article 3 of the Convention also requires that there exist substantial grounds for believing that he or she would be in danger of being subjected to torture and that the risk of torture be foreseeable, personal, present and real.5 Furthermore, the State party maintains that the onus of proving that there is such a risk rests with the complainant and that this risk must be assessed on grounds that go beyond mere theory or suspicion.6
As far as admissibility ratione materiae is concerned, the State party submits that prison conditions constitute torture only if they are particularly harsh or if particular acts or practices are directed against individuals. It adds that the complainant’s claim that he would be imprisoned upon return to Sri Lanka does not meet the threshold for torture, in particular the requirement of severe pain and suffering, and therefore does not engage the State party’s non-refoulement obligations under article 3 of the Convention.
The State party contends that the complainant has failed to provide exhaustive arguments to support his allegation of a violation of article 3 in a way that establishes a prima facie case for the purpose of admissibility.7 In addition, it points out that the complainant’s claims have been thoroughly considered as part of a series of domestic decision-making processes, including by a delegate of the Minister for Immigration and Border Protection, the Refugee Review Tribunal, the Federal Circuit Court of Australia, the Federal Court of Australia and the High Court of Australia. The State party specifies that the complainant’s claims were considered as part of robust domestic processes and determined not to be credible and not to engage its non-refoulement obligations. Furthermore, it acknowledges that complete accuracy is seldom to be expected of victims of torture8 and clarifies that the domestic decision makers took this into consideration when forming their views on the complainant’s credibility.
Regarding the merits of the communication, the State party holds that, if the Committee considers the complainant’s claims to be admissible, they are without merit, as demonstrated by the fact that they were thoroughly assessed as a part of the protection visa application process. It refers to the decision of the delegate of the Minister for Immigration and Border Protection of 24 September 2013, according to which the claims are not credible, as some aspects appear to be exaggerated or embellished. While the delegate accepted that the complainant had been detained in November 2009, following his first attempt to depart Sri Lanka illegally, he did not accept that the complainant remained a person of interest to the Sri Lankan authorities. The delegate added that the criminal case against the complainant had been closed upon payment of a fine, and he had not been required to report to the authorities after his release from detention. Moreover, the delegate pointed out that the complainant had been able to travel legally to and from India in early 2011 on a genuinely issued passport without incident and to obtain another passport in February 2011. The delegate did not accept that the complainant had been questioned by the Criminal Investigation Department of Sri Lanka in April 2011 and held overnight or that he had been questioned by the Department in July 2011 and had reported the harassment to the police. The delegate considered that the complainant had fabricated that aspect of his claims and did not accept that he remained of any interest to the Sri Lankan authorities. Furthermore, the delegate did not consider that the complainant’s ethnicity alone would place him at risk of serious harm if he returned to Sri Lanka and was not satisfied that there was any real likelihood that, if the complainant returned to Sri Lanka, the Sri Lankan authorities would seek to harm him in the reasonably foreseeable future because of political opinions that he actually held or that were attributed to him. Regarding the complainant’s concerns relating to his return as a failed asylum-seeker from the West who would be seen as a supporter of LTTE, the delegate concluded that, if the complainant were returned, the Sri Lankan authorities would verify his citizenship, interview him and subject him to a criminal background check, noting that he was not currently being investigated or of any interest to the authorities. The delegate added that, while, as an individual who had left Sri Lanka unlawfully by boat, he might be held on remand until the next sitting of the court, following which he would be released on bail pending further action, he would nevertheless receive the standard penalty for illegal departure, namely a fine, as there are no reports of anyone being imprisoned for this reason. In addition, for the same reasons, the delegate concluded that the complainant was not a person in respect of whom the Government of Australia had protection obligations; the delegate was not satisfied that there was any real likelihood that the complainant would be arrested, detained, tortured and/or killed by the Sri Lankan authorities if he returned to Sri Lanka. Accordingly, the delegate refused the complainant’s protection visa application.
The State party notes that, on 26 March 2015, the Refugee Review Tribunal confirmed the decision of the delegate not to grant the complainant a protection visa. The State party specifies that the Tribunal confirmed the delegate’s concerns relating to the credibility of the complainant and concluded that, if his claims were considered cumulatively, he was not a witness of truth. The State party explains that the Tribunal considered the documents submitted by the complainant but found that they did not assuage concerns about his credibility. The Tribunal considered the risk that the complainant would suffer serious harm upon return to Sri Lanka on the grounds that he was a Tamil man from Colombo who had left Sri Lanka illegally in 2012 and would be returning from Australia as a failed asylum-seeker. The Tribunal rejected the complainant’s claim that he was at heightened risk owing to the events that had occurred in Sri Lanka before his arrival in Australia, reiterating that it did not find his account of the events on which his protection claims were based to be credible. Overall, the Tribunal found that there was no real likelihood that the complainant would suffer serious harm in Sri Lanka. On the basis of country information, the Tribunal established that the risk of the complainant suffering significant harm in the process of returning to Sri Lanka and being prosecuted for his illegal departure was also remote. It noted that, although returnees were held in custody on arrival so that checks could be made, they were not subjected to mistreatment, were brought before a magistrate at the earliest opportunity and were held in prison only if a magistrate was not available on the day of arrival. The Tribunal concluded that the period spent in prison, if any, would be brief and regulated by the laws of Sri Lanka on departure from the country, which were enforced in a non-discriminatory manner. Furthermore, it considered that, although prison conditions in Sri Lanka were poor, the cause was inadequate resources, and placement in such conditions would not amount to significant harm, including torture. Accordingly, the Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the complainant’s removal to Sri Lanka, there was a real risk that he would suffer significant harm, including torture.
The State party informs the Committee that, on 11 November 2017, the Federal Circuit Court of Australia dismissed the complainant’s request for judicial review of the decision of the Refugee Review Tribunal. The Court dismissed most of the complainant’s claims as factual narratives that raised no matters requiring its consideration and responded to the complainant’s allegation that the Tribunal had found the charge sheet and other documents that he had submitted to the delegate not to be genuine. The Court noted that the Tribunal did not need to make an express finding as to the genuineness of the documents in order to reach a conclusion in relation to them, namely that it did not accord them any weight. The Court noted that, in accordance with the Tribunal’s findings, the complainant’s case was so lacking in credibility in other aspects that the documents had no bearing on the case. It added that the Tribunal must be understood to have implicitly rejected the accuracy or genuineness of the documents on that basis. Moreover, it added that, during the proceedings before the Tribunal, the complainant had been given the opportunity to fully address all the matters of concern to himself and to the Tribunal. Regarding the complainant’s oral submission at the hearing, the Court noted his claim that he had been mentally and physically affected by the experience of fleeing to Australia and his lack of success before the delegate and the Tribunal. It stated that no medical evidence had been presented to support a conclusion that the complainant was precluded by any medical condition from properly presenting his case. As a result, the Court found that jurisdictional error on the part of the Tribunal had not been established and dismissed the application.
The State party submits that, on 3 December 2018, the complainant’s application for leave to appeal the decision of the Federal Circuit Court of Australia to the Full Court of the Federal Court of Australia was also dismissed. The Federal Court of Australia held that, given the Tribunal’s view that the complainant lacked credibility, the Federal Circuit Court had not erred in finding that the Tribunal had been entitled not to afford any weight to the documents provided by the complainant. On 17 May 2019, the High Court of Australia refused the complainant’s application for special leave to appeal on the basis that the Federal Court of Australia had not failed to apply the appropriate standard of appellate review. On 3 June 2019, the complainant’s representative made a request for ministerial intervention under section 48B of the Migration Act. The State party notes that the complainant did not provide any new claims or evidence to challenge the Tribunal’s findings, with the exception of a new claim that he would face six months’ imprisonment as result of the reimposition of his suspended sentence. The Department of Immigration and Citizenship noted that the complainant had not previously made that claim, in support of which no evidence was provided. It pointed out that, during the protection visa application and the Tribunal review processes, the complainant had argued that he had been remanded for up to 90 days but had been released on bail prior to completing the full 90 days, in January 2010. The Department also noted that the complainant had appeared before a court in April 2010 and had been given a fine. It added that, without any further information to support the complainant’s claim, it considered that his case had been finally determined and that he would therefore not face further imprisonment. On 14 June 2019, the Department determined that the claims contained in the complainant’s request were unlikely to result in a finding that the protection obligations of the Government of Australia were engaged, and the request was therefore found not to meet the ministerial guidelines and was not referred for consideration.
Lastly, the State party reiterates that the protection visa application procedure and, in particular, the Tribunal procedure did satisfy the requirements of a fair and impartial trial. Regarding the assessment of the authenticity of the documents provided by the complainant in support of his request for a protection visa, the State party stresses that the Tribunal’s decision, which was affirmed by the Federal Circuit Court of Australia and the Federal Court of Australia, clearly shows that various concerns about his credibility made his claims as a whole so implausible that they could not be salvaged by the documents provided. It reiterated that the Tribunal had not been required to mention the accuracy or authenticity of the documents expressly in order to make clear that it had not considered them capable of supporting the complainant’s claims.
Complainant’s comments on the State party’s observations on admissibility and the merits
In his comments of 8 December 2022, the complainant submits that the processes through which his claims of detention, torture and mistreatment were assessed are not fit for purpose. He reiterates that the State party obtained information from him when he was an asylum-seeker, in immigration detention, and adds that the interviews were conducted at the detention centre. The complainant requests the State party to submit a copy of the record of that initial interview to the Committee.
State party’s additional observations
In its additional observations of 22 February 2023, the State party argues that the complainant’s comments on its initial observations are without merit, stresses that he was able to apply for a protection visa and adds that his claims were thoroughly and appropriately considered by domestic decision makers. The State party clarifies that, on 26 September 2012, the migration authorities conducted an entry interview with the complainant.
Consideration of admissibility
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.
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it should 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 does not contest that the complainant has exhausted all available domestic remedies and therefore concludes that this requirement has been met.
The Committee recalls that, for a claim to be admissible under article 22 of the Convention and rule 113 of its rules of procedure, it must rise to the basic level of substantiation required for the purpose of admissibility.9 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. It follows that the Committee will 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.10 In the present case, the Committee notes the complainant’s claim that his return to Sri Lanka would violate his rights under article 3 of the Convention, as he would be imprisoned for six months with hard labour as a result of the reimposition of a suspended sentence and would be subjected to torture in prison for allegedly being a member of a terrorist organization and aiding and abetting LTTE. The Committee takes note of the complainant’s claim that he would be intentionally and deliberately subjected to poor prison conditions, including overcrowding and unsafe and unsanitary conditions, amounting to a form of torture and posing a real risk to his life, health and safety. The Committee also takes note of the complainant’s claim that the decisions of the authorities did not satisfy the requirements of a fair and impartial procedure, as the authorities did not consider the documents that he had presented in support of his application and did not assess their genuineness.
The Committee takes note of the State party’s argument that the obligation under article 3 must be interpreted by reference to the definition of torture set out in article 1 of the Convention and that the obligation of non-refoulement under the Convention is confined to torture and does not extend to cruel, inhuman or degrading treatment or punishment. The Committee recalls that, before making an assessment of any case involving the principle of non-refoulement, States parties should consider whether the nature of the other forms of ill-treatment that a person facing deportation is at risk of experiencing is likely to change so as to constitute torture.11
- Ibid., para. 16. See also general comment No. 2 (2007) on the implementation of article 2 by States parties, in particular paras. 1, 3, 6, 15 and 25. See also Harun v. Switzerland (CAT/C/65/D/758/2016), para. 8.6. ↩
The Committee is aware of the human rights situation in Sri Lanka and the ongoing challenges in this regard.12 Nevertheless, it recalls that the occurrence of human rights violations in the complainant’s country of origin is not, in itself, sufficient for it to conclude that a complainant would face a personal risk of being tortured. In this regard, the Committee notes the State party’s contention that, for the purpose of admissibility, the complainant has failed to provide exhaustive arguments to support his allegation of a violation of article 3 and that his claims have been thoroughly considered as part of a series of domestic decision-making processes, including by a delegate of the Minister for Immigration and Border Protection, the Refugee Review Tribunal, the Federal Circuit Court of Australia, the Federal Court of Australia and the High Court of Australia. The Committee also notes the State party’s contention that the complainant’s claims were considered as part of robust domestic processes and determined not to be credible and that, when forming views on the complainant’s credibility, domestic decision-makers took into consideration the fact that complete accuracy is seldom to be expected of victims of torture. The Committee refers to its general comment No. 4 (2017) on the implementation of article 3 in the context of article 22, according to which the burden of proof is upon the complainant, who must present an arguable case.13 In the light of the foregoing, and in the circumstances of the present case, the Committee considers that the complainant has not discharged that burden of proof and has presented claims that are too general in nature.14 Accordingly, the Committee concludes that the complainant has failed to sufficiently substantiate his claims under article 3 of the Convention for the purpose of admissibility.
- See, for example, A/HRC/46/20, A/HRC/51/5 and CAT/C/LKA/CO/5. See also the conference room paper of the Office of the United Nations High Commissioner for Human Rights investigation on Sri Lanka, available on its web page (https://www.ohchr.org/en/hr-bodies/hrc/oisl). ↩
- General comment No. 4 (2017), para. 38. See also T.M. v. Sweden (CAT/C/68/D/860/2018), para. 12.13. ↩
- For similar cases in which the necessary threshold was not reached, see, for example, N.S. v. Australia (CAT/C/71/D/884/2018); G.W.J. v. Australia (CAT/C/72/D/856/2017); Tharchanamoorthy v. Australia (CAT/C/72/D/944/2019); D.S. v. Australia (CAT/C/73/D/941/2019); and S.L. v. Australia (CAT/C/75/D/964/2019). ↩
In the light of the foregoing, the Committee declares the communication inadmissible for lack of merit, in accordance with article 22 of the Convention and rule 113 (b) of its rules of procedure.
The Committee therefore decides: (a) That the communication is inadmissible under article 22 of the Convention;