N.K. v. Switzerland

The complainant is N.K.,³ a national of Sri Lanka born on 17 July 1981. He applied for asylum in Switzerland, but his application was rejected. He is facing deportation to Sri Lanka and claims that his deportation would constitute a violation by the State party of articles 3, 14 and 16 of the Convention. The State party made the declaration provided for in article 22 (1) of the Convention on 2 December 1986. The complainant is represented by counsel.

3. The complainant requested anonymity. ↩

On 20 February 2020, the Committee, acting through its Rapporteur on new complaints and interim measures, decided not to accede to the complainant’s request for interim measures.

On 1 October 2020, 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.

The complainant is of Tamil ethnicity. In March 2007, he was forcibly recruited by the Liberation Tigers of Tamil Eelam and trained to make mines. Specifically, he was tasked with cleaning the rubber components of the mines. He was also responsible for computers and took courses in telecommunications. In April 2009, at the end of the war, he had to take part in the fighting against the Sri Lankan Army. He fought for two or three days, before being wounded by shrapnel. He was treated in a hospital under the control of the Tamil Tigers for around 10 to 15 days.

Upon the complainant’s return home, his village was surrounded by the Sri Lankan Army and he was handed over to military officers, who took him to the Arunachalam refugee camp. During an interrogation, the complainant confessed to being a member of the Liberation Tigers of Tamil Eelam. In May 2009, he was sent to a rehabilitation camp; he continued to be held in such camps for over two years. He was detained and interrogated for eight to nine months at the Nelukulam camp. Occasionally, members of the Criminal Investigation Department would come to the camp to interrogate him. The complainant explained the circumstances of his enlistment in and activities as a member of the Tamil Tigers. On 13 May 2009, he was visited by representatives of the International Committee of the Red Cross, who registered him and issued him with a certificate for that purpose. Later, he was sent to other camps, where the interrogations continued. He was released on 30 September 2011. After his release, he had to report on a daily basis for six months to a military camp to confirm his whereabouts. From November or December 2011, he began to receive visits from military officials and plainclothes officers of the Criminal Investigation Department; these visits continued until he fled the country.

Officers of the Criminal Investigation Department also arrested and detained the complainant for questioning on three occasions, namely in January and June 2012 and in January 2013,⁴ and subjected him to physical and psychological torture. He received multiple blows with a bar to his hands, arms and back. The officers told him that two of his former fellow members of the Liberation Tigers of Tamil Eelam had been arrested and had reported him, claiming that he knew where the group had buried caches of mines and weapons. The complainant denied these allegations. Visits to his home by military officials and officers of the Criminal Investigation Department continued after his last stint in detention. The complainant subsequently lived in hiding before leaving the country in September 2014, departing from Colombo using a fake passport and with the assistance of a smuggler. From September 2014 to November 2016, he lived in Malaysia, where he tried to obtain legal status to no avail. After a group of people came to his home asking about him while he was out, he decided to leave Malaysia.

4. The complainant was detained for one day in January 2012, two days in June 2012 and one day in January 2013. ↩

On 9 November 2016, the complainant arrived in Switzerland,⁵ where he applied for asylum the next day. He claims that, in the meantime, visits by the Sri Lankan authorities to his family home have continued and that he is still wanted. His sisters and father were threatened in an attempt to coerce them into revealing his whereabouts.

5. One of the complainant’s brothers arranged his journey with the help of a smuggler, who took him to Türkiye via Dubai, using a fake Malaysian passport. The complainant was then accompanied in a car towards Switzerland. The final part of the journey was completed by train. ↩

At his first hearing on 21 November 2016, which concerned his personal information and medical situation, the complainant told the State Secretariat for Migration that he had shrapnel lodged in his spinal column, had been wounded in his right leg by bomb shrapnel and had suffered a head injury. On 19 March 2018, during the hearing on the grounds for his asylum application, the complainant explained that he had had to undergo an operation in Switzerland, had been beaten in his country and still had back pain. He indicated that he underwent monthly medical check-ups and presented two medical documents.⁶ With regard to his activities during the five years between the end of his schooling in 2002 and his forcible enlistment in the Liberation Tigers of Tamil Eelam in 2007, the complainant stated at his first hearing that he had occasionally worked as a day labourer. At the hearing on the grounds for his asylum application, he stated that he had worked in his father’s business and had taken part-time computing courses.

6. Hospital discharge letter dated 19 May 2017 after right paravertebral lipoma excision surgery and a consultation report dated 17 July 2017 regarding chronic lower back pain. ↩

On 22 May 2019, the State Secretariat for Migration rejected the complainant’s asylum application and ordered his deportation. The State Secretariat noted that the last of his three arrests was in March 2013, a year and a half before his departure for Malaysia, and that this lapse of time does not suggest a causal link between the three arrests and his flight from the country. As for the visits to the complainant’s home, the way in which these visits were described by the complainant did not suggest they could be grounds for asylum, insofar as he did not relay any hint of persecution, simply stating that: “They asked me how I was, what I was doing and if I still maintained contacts within the Liberation Tigers of Tamil Eelam. They would ask me that sort of question then leave.”

The State Secretariat for Migration also noted that the complainant’s story contained numerous implausible elements, including chronological contradictions: the complainant initially stated that after being released from the rehabilitation camp, he was left in peace for six months, then he claimed it was for four months, and later he claimed to have run into trouble two to three months after his release. Furthermore, at his first interview, the complainant did not recount what his two comrades in the Liberation Tigers of Tamil Eelam had confessed to the authorities after their arrest. Nonetheless, the State Secretariat found that if the authorities had learned from these comrades that the complainant knew the locations of Tamil Tigers weapons caches, or perhaps even simply that he had worked with explosives, they would not merely have detained him on three occasions, at intervals of several months, for short periods of time. Nor, empty-handed, would they have merely visited him at his home to ask him how he was and not to cause any trouble. In its reasoning, the State Secretariat pointed out that, according to generally available information, the repression of all separatist sentiment in Sri Lanka is fierce, and efforts to prevent any resurgence of the Tamil Tigers, in particular under the Prevention of Terrorism Act, make it de facto impossible for persons suspected of concealing weapons or explosives to be knowingly left at liberty.

As for the claim that the Sri Lankan authorities traced the complainant to Malaysia and convinced the local authorities to cooperate in tracking him down there, the State Secretariat for Migration found this allegation unconvincing, in view of the fact that the Sri Lankan authorities were disinclined to pursue the complainant while he was still on their territory. According to the State Secretariat, the evidence presented by the complainant does not contradict its analysis, since the fact that the latter spent time in rehabilitation camps is not being called into question. Medical reports drawn up following treatment in Switzerland cannot be considered to constitute evidence of the after-effects of mistreatment.

Regarding the risk of persecution in the event of the complainant’s return, the State Secretariat for Migration has stated that any Sri Lankan who returns to the country after having left it illegally, without valid identity papers, who has undergone asylum proceedings abroad or who is wanted by the authorities is questioned at the airport. Neither this single interrogation nor the possible initiation of criminal proceedings for illegal departure from the country constitute persecution that would constitute a ground for asylum. In addition, the complainant did not report having been subjected to any form of persecution before leaving Sri Lanka; on the contrary, he resided there until September 2014, which means that he lived in the country for five years after the end of the war. In the view of the State Secretariat, any possible risk factors that existed at the time of the complainant’s departure are unlikely to give rise to current persecution by the Sri Lankan authorities. There is therefore no reason to presume that, in the event of his return to Sri Lanka, the complainant would be likely to be exposed in the near future to persecution that constituted a ground for asylum.

On 4 November 2019, the Federal Administrative Court rejected the complainant’s appeal. In particular, the Court noted that since the complainant was still in possession of his identity card, dated 22 February 2012, it was not likely that he had been subjected to particularly rigorous interrogation at that time. Moreover, the Court noted the discrepancies in the complainant’s account of the periods during which he had allegedly had problems with the authorities in his country and the dates on which he had been arrested. The Court also noted that the complainant gave two different dates for his third and final arrest, namely January 2013 and March 2013; the complainant ultimately stated that he had made a mistake during his first hearing because he had been under pressure. Furthermore, the Court indicated that persons who have undergone a rehabilitation programme, like the complainant, are in principle considered by the Sri Lankan authorities to have served their sentences and thus to no longer represent a threat to the country’s stability.

The Court noted that the complainant was not in a position to rely validly on any additional risk factors other than his possibly illegal flight from the country. With regard to the complainant’s medical situation, the Court noted that, according to a medical report of 2 August 2019, the complainant was experiencing a flare-up of the symptoms of posttraumatic stress disorder, with which he was reportedly diagnosed upon his arrival in Switzerland, and fluctuating suicidal ideation; however, the Court also pointed out that the complainant did not mention any mental disorder at the first hearing on 21 November 2016, only back pain caused by shrapnel. The complainant also failed to mention any mental disorder at the hearing on the grounds for his asylum application on 19 March 2018, and on the contrary stated that he was well, aside from his back pain, and that he was undergoing monthly medical check-ups. The Court therefore came to the conclusion that the diagnosis of post-traumatic stress disorder was based on factors other than those alleged. In any event, the complainant’s state of physical and mental health is not of such intensity as to prevent the execution of the removal order against him. Neither did it prevent him from starting, as of March 2019, to earn a living as a diver, an activity he continues to this day. Moreover, psychiatric treatment is also available in Sri Lanka.

Two medical reports, issued on 10 and 13 December 2019, concluded that the deportation of the complainant was medically inadvisable. These medical reports were drawn up as a matter of urgency, so that the complainant could rely on them in the event of enforcement action.

Lastly, in the context of his complaint to the Committee, the complainant produced a medical report dated 21 January 2020, drawn up by his attending physician, which details the acts of torture he suffered during his three arrests, stating that he reported these acts of torture as early as his initial health assessment in January 2017. The after-effects of this torture include chronic back pain and tingling in both arms, as well as scars consistent with shrapnel wounds. It is stated in the report that the complainant has post-traumatic stress disorder, the symptoms of which became apparent as soon as he arrived in Switzerland. A medical report dated 27 January 2020, written by the complainant’s psychiatrist, confirms that he displays symptoms consistent with a depressive episode and post-traumatic stress disorder, which was reactivated when he was notified of the deportation order issued against him. The report concludes that the complainant should continue to receive psychiatric care. Lastly, a medical report dated 24 September 2020 not only recounts the torture and ill-treatment to which the complainant was subjected during his three arrests, but also describes the torture and illtreatment to which he was subjected during his two-and-a-half-year detention in a rehabilitation camp − a new element, which the complainant had previously been unable to talk about. The report concludes that the deportation of the complainant would exacerbate the symptoms of his post-traumatic stress disorder and his depression, thereby worsening his suicidal ideation and increasing the risk that he would act upon that ideation, and that the complainant requires continued psychiatric care.

The complainant claims that his deportation to Sri Lanka would constitute a violation of his rights under article 3 of the Convention. He claims that he risks being arrested at the airport, then subjected to torture during his interrogation and detention. He is also at risk of being abducted and killed, notably by the Criminal Investigation Department or the Terrorist Investigation Division, because of his Tamil origin, his coming from the north of the country and his membership of the Liberation Tigers of Tamil Eelam. His work making mines and his participation in hostilities mean that he has a specific profile. He claims to have already faced persecution, having been arbitrarily arrested and detained and beaten during each of his arrests. While it is true that he did not elaborate on this point, it is also true that he was not asked to do so. Other important factors are his illegal flight using a fake passport, the length of his stay abroad and his application for asylum in Switzerland.

According to the complainant, there exists a consistent pattern of gross, flagrant and mass violations of human rights in Sri Lanka. The complainant claims that the Committee has recognized this situation.⁷ He refers to various reports on the regular and systematic use of torture against detainees under the pretence of the application of the Prevention of Terrorism Act and against persons suspected of having links with the Liberation Tigers of Tamil Eelam.⁸ He points out that Tamils, particularly in the Northern Province, continue to face harassment and intrusive surveillance,⁹ and claims that the current head of the Army is implicated in alleged war crimes.

7. G.E. v. Australia (CAT/C/61/D/725/2016), para. 7.8, and S.H. v. Australia (CAT/C/65/D/761/2016), para. 9.5. ↩
8. A/HRC/40/23; A/HRC/40/52/Add.3; A/HRC/42/NGO/134; Human Rights Watch, “World Report 2020: Sri Lanka” and “Sri Lanka: Human Rights Gains in Grave Peril – New Administration Poses Threat to Activists, Media, Victims Seeking Justice”, 14 January 2020; Swiss Refugee Council, “Sri Lanka : le changement de gouvernement réveille des craintes chez les minorités”, 21 November 2019, and “Stop aux renvois vers le Sri Lanka”, 5 December 2019; Swissinfo, “Les tensions entre la Suisse et le Sri Lanka atteignent leur paroxysme”, 12 December 2019; and Amnesty International, “Human rights in Asia-Pacific: Review of 2019 – Sri Lanka”, 29 January 2020. ↩
9. A/HRC/40/52/Add.3, paras. 54 and 56, and Human Rights Watch, “World Report 2020: Sri Lanka”. ↩

The complainant notes that the State party’s authorities erroneously questioned the plausibility of his account on the basis of a simple, non-essential chronological error, the making of which was understandable in the context of the hearing. Moreover, while he allegedly claimed to have run into trouble two to three months after his release, he explained that the first visits were monitoring visits, during which he was neither threatened nor tortured. The real problems began in January 2012, when he was arrested, detained and tortured, four months after his release, as stated in his claims. There is therefore no chronological contradiction.

The State Secretariat for Migration claims that the complainant’s account of his involvement in the Liberation Tigers of Tamil Eelam is lacking in detail. The complainant maintains that he answered the questions satisfactorily and that at no time was he asked to expand on his answers. In addition, several documents demonstrate the reality of his involvement in the Tamil Tigers and his detention for rehabilitation purposes. The long period he spent in detention in rehabilitation camps is consistent with the length and nature of his involvement with the Tamil Tigers, in particular his work making mines.

With regard to the claim made by the State Secretariat for Migration that it would be impossible for persons suspected of knowing the whereabouts of hidden weapons or explosives to be knowingly left at liberty, the complainant notes that he was arrested with no regard for due legal process, was closely surveilled and received regular visits from the authorities. Moreover, contrary to the claims of the State Secretariat, the complainant did not allege that it was a proven fact that the Sri Lankan authorities had tracked him down all the way to Malaysia but rather legitimately thought that the fact that people had turned up to ask questions about him in that country might have been related to the fact that he was still being sought by the Sri Lankan authorities. The circumstances of his flight from Sri Lanka contribute considerably to his suspicion.

Accordingly, the complainant claims that his account does not contain implausible elements and that he has produced various pieces of evidence that demonstrate his participation in the activities of the Liberation Tigers of Tamil Eelam, his detention in rehabilitation camps and the torture to which he was subjected. The scars resulting from this torture are also documented in the medical report dated 21 January 2020. It should be noted that the State Secretariat for Migration indicated only that it had “serious reservations about the credibility” of the complainant’s statements and did not conclude that his story was implausible or question the fact that he had spent time in rehabilitation camps. It is therefore difficult to understand how it could be argued that the complainant was not a member of the Liberation Tigers of Tamil Eelam. Moreover, the State Secretariat attached too much importance to the fact that the complainant remained in Sri Lanka until 2014, given that he was in hiding and that the Federal Administrative Court has previously recognized the existence of links to the Liberation Tigers of Tamil Eelam as an element likely to constitute a strong risk factor.¹⁰ In addition, the State Secretariat did not address the issue of the complainant’s scars, despite the fact that the jurisprudence of the Federal Administrative Court recognizes the existence of scars as a risk factor, albeit a low one.

10. Judgment E-1866/2015 of 15 July 2016. ↩

The complainant regrets the position of the Federal Administrative Court, which, in its ruling of 4 November 2019, went further than the State Secretariat for Migration and upheld the finding that his story was implausible. The complainant argues that the fact that a person has been issued with an identity card does not prevent that person from being arrested and questioned. He explains that he applied for an identity card several months before his first arrest. With regard to the discrepancies noted by the Federal Administrative Court in the complainant’s statements regarding the date of his third arrest, the complainant clearly indicated that he thought he had made a mistake at the first hearing. Moreover, these discrepancies should be considered a minor error, given that the complainant has posttraumatic stress disorder and that almost four years had passed between the event in question and the first hearing.

The complainant argues that the assertion of the Federal Administrative Court that persons who have undergone a rehabilitation programme are in principle considered by the Sri Lankan authorities to have completed their sentences is not supported by any source and runs counter to a report drawn up by the State Secretariat for Migration, dated 30 April 2014, according to which former members of the Liberation Tigers of Tamil Eelam continue to be surveilled by the authorities after their release from rehabilitation camps and, in some reported cases, are subjected to harassment and mistreatment. Furthermore, although the Federal Administrative Court argues that the complainant gave two different accounts of his activities prior to his enlistment in the Tamil Tigers, asylum-seekers are asked to respond briefly at the summary hearing, and this question is not related to the grounds for the complainant’s asylum. The complainant is therefore of the view that the assessment of his credibility was inadequate and that the Swiss authorities failed to comply with their obligation to carry out an effective, independent and impartial examination. Moreover, the complainant was not represented by a lawyer or a professionally qualified agent in his appeal proceedings.

In view of the complainant’s medical situation, in particular his fluctuating suicidal ideation and his need for psychiatric treatment, his removal would also constitute a violation of articles 3, 14 and 16 of the Convention, since it would put him at risk of retraumatization that would exacerbate his post-traumatic stress disorder. The fact that psychiatric treatment is available in Sri Lanka is not sufficient, since basic security conditions related to hygiene, health, economic stability and social security and housing are not guaranteed. The complainant refers to the Committee’s decision in the case of A.N. v. Switzerland, in which the Committee found a violation of articles 3, 14 and 16 of the Convention in view of the medical situation of the complainant in the case, who had been returned to Italy.¹¹

11. A.N. v. Switzerland (CAT/C/64/D/742/2016). ↩

Lastly, the complainant submits a report by the Swiss Refugee Council concerning access to rehabilitative treatment for victims of torture in Sri Lanka.¹² The complainant claims that this report demonstrates that there are no sufficient and satisfactory rehabilitative services for torture victims in Sri Lanka. The report also states that victims of torture run a risk if they report their torture to doctors or psychologists. According to the complainant, this report demonstrates that, if he is returned to Sri Lanka, he will not be able to undergo the rehabilitative treatment for victims of torture that he needs and to which he is entitled, will run the risk of being reported to the authorities if he tells a doctor about the torture to which he was subjected and will be back at risk of serious harm.

12. Swiss Refugee Council, “Sri Lanka: accès aux traitements de réhabilitation pour les victimes de la torture”, 1 September 2020. ↩

On 20 October 2020, the State party submitted its observations on the merits, reiterating the arguments made by the Swiss asylum authorities. It does not dispute that the complainant was held in various rehabilitation camps from May 2009 to 30 September 2011. However, at no point during the domestic proceedings or in his complaint to the Committee did the complainant allege that he had been subjected to torture or treatment contrary to the Convention during this period. With regard to the complainant’s detention in the Vavuniya camp, the first to which he was sent, the complainant stated the following during his hearing on 19 March 2018: “I was held in this camp and from time to time I was interrogated. Sometimes the Colombo CID¹³ would question us. That was all. I was then transferred to other camps.” Furthermore, it is clear from the medical report drawn up by the complainant’s doctor on 21 January 2020 that the ill-treatment that he described to this doctor, which whom he had developed a trusting relationship, relates solely to his detention in 2012 and 2013 and not to the time he spent in rehabilitation camps.

13. Members of the Criminal Investigation Department. ↩

The State party notes that it was in his request for reconsideration of the Committee’s decision of 20 February 2020 rejecting interim measures suspending enforcement of removal that the complainant first asserted that he had also been subjected to torture and ill-treatment while detained in the rehabilitation camps. However, the complainant provides no details in this regard and refers only to a new medical certificate, dated 24 September 2020, which, like the medical certificates of 21 and 27 January 2020, could not be taken into account in the disputed domestic decisions. By law, the complainant has the option of submitting these certificates to the State Secretariat for Migration in a request for reconsideration, explaining why it would not have been possible to submit them earlier. In view of this possibility, and in accordance with the principle of subsidiarity, the State party considers that they should not be taken into account by the Committee in the context of the present proceedings.

In any event, particularly in view of the fact that the complainant was not arrested again between his last spell in detention in January 2013 and his departure from Sri Lanka in September 2014, the State party is of the view that the complainant’s new allegations are not such as to demonstrate a foreseeable and present risk that he would be subjected to treatment contrary to the Convention in the event of his removal.

With regard to the medical certificates produced by the complainant, the State party points out that statements made in the course of psychiatric consultations cannot constitute evidence of the veracity of the alleged grounds for asylum, since the doctor’s aim is to treat the patient and not to conduct a hearing designed to establish the truth of the alleged facts by analysing the credibility of the patient’s statements. Moreover, the medical findings do not constitute proof of the circumstances in which the complainant’s injuries occurred and therefore cannot constitute proof of the grounds for asylum put forward by him.

Next, the State party recalls the inconsistencies in the complainant’s account and argues that these inconsistencies cannot be explained solely by the fact that the complainant was under pressure or suffering from mental disorders. According to the claims made by the complainant, he was not arrested in the 20 months prior to his departure from Sri Lanka. Consequently, there is no reason to fear that he will be exposed to serious persecution if returned. Moreover, this fact calls into question the temporal causal link between the alleged persecution and the complainant’s departure from Sri Lanka.

The State party argues that, contrary to the suggestion made by the complainant in his complaint, the fact that he was detained in rehabilitation camps is not in itself proof of his involvement with the Liberation Tigers of Tamil Eelam. Even if his detention in these camps is not contested, the complainant must still be able to make a credible case for asylum, which he has not done in the present case. As indicated by the Federal Administrative Court, persons who have undergone a rehabilitation programme, such as the complainant, are in principle considered by the Sri Lankan authorities to have served their sentences and thus to no longer represent a threat to the country’s stability. The State party also points to factual inconsistencies in the complainant’s claims, as noted by the Federal Court: chronological contradictions, implausible assertions and the vagueness of certain aspects of the complainant’s story, such as his account of being tracked down by the Sri Lankan authorities to Malaysia and the two different accounts he gave of his activities during the five years between the end of his schooling in 2002 and his forcible enlistment in the Liberation Tigers of Tamil Eelam in 2007.

With regard to the analysis of the alleged risk of torture, the State party notes that it is clear from the decision of the State Secretariat for Migration that the latter carried out a detailed assessment of the complainant’s request, in the course of which it took into account all relevant statements made by the complainant and all evidence provided. While the State Secretariat did not cite all the documentation on which it based its assessment of the situation in Sri Lanka, its decision is nonetheless based on a thorough analysis of all relevant elements, as can be seen in particular from its 2016 report “Focus Sri Lanka: Lagebild”, which is based on a wide array of sources. The reasoning of a decision must be laid out in such a way that it may be understood by the person concerned. While the authority must indicate the evidence used in the assessment of a specific case, it is not required to list the documents on which it has based its assessment of a general situation. Similarly, although the reasoning of the decision of the Federal Administrative Court is relatively brief, the Court took due account of all relevant elements of the case and all the arguments put forward by the complainant in his appeal, as required under the Asylum Act.

Regarding the complainant’s access to treatment in Sri Lanka, the State party points out that his ailments, in particular his psychological problems, can be treated in the Northern Province, in particular in Jaffna, where he has relatives. Treatment is available, for example, in the Teaching Hospital in Jaffna, the Base Hospital in Chavakachcheri and the Base Hospital in Point Pedro. The Jaffna district is categorized as having comprehensive mental health services, which means that these services are of the highest level.¹⁴ Treatment in public health-care facilities is free of charge. In addition, the non-governmental organization Shanthiham Association for Health and Counselling, based in Jaffna, provides psychological support for people suffering from post-traumatic stress disorders linked to the tsunami and the armed conflict. The organization offers counselling, group work and psychological support for anxiety attacks, depression and post-traumatic stress disorder. It works mainly with volunteers and is heavily involved in training and passing on basic knowledge about mental illness. In view of all these factors, the complainant’s allegations are unfounded.

14. World Health Organization/Ministry of Health and Nutrition, “Expansion of mental health services in Sri Lanka”, 11 June 2010. ↩

On 2 March 2021, the complainant refuted the State party’s arguments. He sends a new report on human rights in Sri Lanka.¹⁵ Secondly, he asserts that he was not required to file a request for reconsideration for his complaint to be admissible before the Committee, even in the event that new evidence came to light. During the proceedings before the Committee, he is free to attach any evidence relevant to his complaint. The medical certificate of 24 September 2020 and the allegations reflected therein regarding the torture and illtreatment to which the complainant was subjected during his two-and-a-half-year detention in rehabilitation camps can thus be taken into consideration in the present proceedings. Given that the information regarding these allegations was gathered after several months of therapy and the establishment of a trusting therapeutic relationship enabling the patient to talk about his trauma, the complainant cannot be blamed for having succeeded in offering the information only at a late stage.

15. Amnesty International, “Sri Lanka: Old ghosts in new garb: Sri Lanka’s return to fear”, 17 February 2021. ↩

The complainant maintains that if it is held that he did not qualify as a refugee at the time of his departure from Sri Lanka, there is an objectively substantiated risk that he will be exposed to persecution upon his return there, not only because of his membership of the Liberation Tigers of Tamil Eelam, but also because of a number of other factors, such as his illegal flight from the country, his application for asylum in Switzerland, his prolonged stay abroad and the presence of visible scars on his body resulting from the torture to which he was subjected.

The complainant considers that the fact that he was arrested arbitrarily, without a warrant, and deprived of the fundamental guarantees he should have enjoyed as a person detained by the police underlines that he would be exposed to a risk of torture if returned to Sri Lanka. In addition, he made it clear to the Swiss authorities that he had been beaten during each of his arrests. While it is true that, during the hearings, the complainant did not give further details about the manner in which he had been beaten or the type of ill-treatment and torture to which he had been subjected, this cannot be held against him, since it was up to the State Secretariat for Migration to probe for more details.

The complainant states that the fact that a person has been issued with an identity card does not prevent him or her from being arrested and subjected to rigorous interrogation. He goes on to explain that while he was not arrested again after his third arrest, during which he was tortured, this was not because he was no longer at risk of persecution from the authorities, who continued to search for him, but rather because he lived in hiding for 20 months.

Lastly, the complainant invokes his state of health, arguing that a return to his country would exacerbate the symptoms of his post-traumatic stress disorder and his depression and suicidal ideation, which he risks acting upon. The lack of care and treatment in his country of origin means that the risk of a serious deterioration in his state of health is very high. In particular, with regard to the State party’s reference to the non-governmental organization Shanthiham, the complainant fails to understand how an association that works primarily with volunteers and focuses on training could offer an appropriate response to or safeguard against the risk of a major deterioration in his state of health, which requires follow-up and treatment by health professionals. Moreover, the Swiss authorities failed to establish whether there was a real and immediate risk that the complainant would act upon his suicidal ideation and also failed to take adequate preventive measures, despite the fact that the medical certificates submitted warned of the risk of suicide.

On 24 September 2021, in support of his allegations of the existence in Sri Lanka of a pattern of gross, flagrant and mass violations of human rights, the complainant produced, inter alia, a report issued in February 2021 by the United Nations High Commissioner for Human Rights on the promotion of reconciliation, accountability and human rights in Sri Lanka.¹⁶

16. A/HRC/46/20. ↩

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 the exhaustion of all available domestic remedies by the complainant or the admissibility of the complaint.

In the absence of any other obstacle to the admissibility of the communication, the Committee proceeds with its consideration of the merits of the claims submitted by the complainant under articles 3, 14 and 16 of the Convention.

The Committee has considered the complaint 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 return 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 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 if returned to Sri Lanka. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim is to establish whether the complainant would be personally at a foreseeable and real risk of being subjected to torture in the country to which he 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 a 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 he or she would be personally at risk. Moreover, although past events may be of relevance, the principal question before the Committee is whether the complainant would currently run a risk of torture if returned to Sri Lanka.¹⁷

17. R. K. v. Switzerland (CAT/C/75/D/951/2019), para. 7.3. ↩

The Committee refers to 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 faces a foreseeable, real and personal risk.¹⁸ The Committee also recalls that, in accordance with its general comment No. 4 (2017), it gives considerable weight to findings of fact made by organs of the State party concerned, while, at the same time, it is not bound by such findings and instead has the power, under article 22 (4) of the Convention, to make a free assessment of the information available to it, taking into account all the circumstances relevant to each case.¹⁹

18. See, inter alia, M.A.R. v. Netherlands (CAT/C/31/D/203/2002), para. 7.3, and Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4. ↩
19. Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50. ↩

In the present case, the Committee notes the complainant’s claims that he would be in danger of facing treatment contrary to article 3 of the Convention if returned to Sri Lanka, as he would risk detention, acts of torture and ill-treatment because of his perceived connections to the Liberation Tigers of Tamil Eelam, particularly given the human rights situation in Sri Lanka. It also takes note of the complainant’s assertion that he was sent to a rehabilitation camp in May 2009 and remained in such camps for a period of over two years, after confessing to having been a member of the Liberation Tigers of Tamil Eelam. It further notes the complainant’s assertion that, after his release on 30 September 2011, he was arbitrarily arrested, interrogated and detained on three occasions − in January and June 2012 and in January 2013 − and was subjected to physical and psychological torture during each of these arrests. The Committee also takes note of the complainant’s allegation that as early as November or December 2011, he began receiving visits from military officials and plainclothes officers of the Criminal Investigation Department, which continued until he fled the country. Lastly, it notes the complainant’s allegation that his return to Sri Lanka would expose him to retraumatization and would prevent him from undergoing psychiatric treatment, in contravention of articles 14 and 16 of the Convention.

The Committee notes that the State party does not dispute that the complainant was detained in various rehabilitation camps but argues that he did not claim to have been subjected to torture or ill-treatment in these camps either in the domestic asylum proceedings or in his original complaint to the Committee. The Committee notes the State party’s argument that the fact that the complainant was detained in rehabilitation camps is not in itself proof of his involvement with the Liberation Tigers of Tamil Eelam. According to the State party, the fact that the complainant was not arrested again between his last spell in detention in January 2013 and his departure from Sri Lanka in September 2014 undermines the assertion that there is a foreseeable and present risk that he would be subjected to treatment contrary to the Convention in the event of his removal.

The Committee notes that the State Secretariat for Migration concluded that if the Sri Lankan authorities had been aware that the complainant knew where the Liberation Tigers of Tamil Eelam had hidden weapons and explosives, they would not simply have questioned him only on three occasions, at intervals of several months, and detained him for only short periods of time. The Committee also takes note of the findings of the Federal Administrative Court, which noted that the complainant had not demonstrated that his diagnosed posttraumatic stress disorder was a result of the grounds alleged and that his state of physical and mental health has not prevented him from taking up gainful employment as of March 2019. The Committee notes the State party’s argument that statements made by the complainant in the context of psychiatric consultations cannot constitute evidence of the veracity of the alleged grounds for asylum, since the doctor’s aim in such consultations is not to conduct a hearing designed to establish the truth of the alleged facts or the circumstances in which injuries occurred. Lastly, the Committee takes note of the information provided concerning the complainant’s access to treatment in Sri Lanka.

In particular, the Committee notes that the Swiss authorities have apparently not called into question the credibility of the complainant’s claims regarding his detention in rehabilitation camps. They have, however, contested the credibility of his claims that his activities with the Liberation Tigers of Tamil Eelam led to his persecution by the Sri Lankan authorities, allegedly the direct cause of his flight from the country. The Committee notes that the complainant has not produced any evidence for his claims. The Committee also notes the conclusion of the State Secretariat for Migration that medical reports drawn up following treatment in Switzerland cannot be considered as evidence of the after-effects of ill-treatment.

The Committee takes note of the complainant’s medical assessment report, which indicates that he is suffering from post-traumatic stress disorder. However, the Committee notes that the majority of the complainant’s medical reports were presented after the Federal Administrative Court had denied his final appeal in the case relating to his asylum application and were therefore not submitted to the authorities of the State party during the asylum proceedings.

The Committee notes, however, that even if it were to accept the claim that the complainant was subjected to acts of torture and ill-treatment in the past, the question is whether he remains, at present, at risk of torture in Sri Lanka in the event of his forcible return there. The Committee also notes that, according to its jurisprudence, the onus is generally on the complainant to make an arguable case.²⁰ In the present case, the Committee is of the view that the complainant has not provided credible information suggesting that the Sri Lankan authorities are currently interested in him.

20. See, for example, C.A.R.M. et al. v. Canada (CAT/C/38/D/298/2006), para. 8.10; M.A.K. v. Germany (CAT/C/32/D/214/2002), para. 13.5; and N.B-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9. ↩

With respect to the argument relating to the worsening of the human rights situation in Sri Lanka, the Committee 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 the complainant is personally at risk of being tortured there. The Committee notes that the complainant had ample opportunity to provide the State Secretariat for Migration and the Federal Administrative Court with supporting evidence and more information about his claims. However, it cannot be concluded on the basis of the evidence provided that the complainant would personally be at risk of facing torture or inhuman or degrading treatment if he returned to Sri Lanka.

On the basis of the above, and in the light of the material before it, the Committee considers that the complainant has not provided sufficient evidence to enable it to conclude that his deportation to his country of origin would expose him to a real, foreseeable, personal and present risk of being subjected to treatment contrary to articles 3, 14 and 16 of the Convention.

The Committee, acting under article 22 (7) of the Convention, concludes that the return of the complainant to Sri Lanka would not constitute a breach of articles 3, 14 and 16 of the Convention by the State party.