S. and V. v. Australia

The complainants are S. and his wife V., nationals of Sri Lanka born in 1983 and 1990, respectively. At the time of the initial submission, their request for asylum in the State Party had been rejected and they were facing deportation to Sri Lanka. They claim that the State Party would violate their rights under article 3 of the Convention if it removed them to Sri Lanka. The State Party has made the declaration pursuant to article 22 (1) of the Convention, effective from 28 January 1993. The complainants are represented by counsel.

On 21 October 2020, the Committee, acting through its Rapporteur on new complaints and interim measures, decided not to issue a request for interim measures under rule 114 of the Committee’s rules of procedure.

The complainants are ethnic Tamils of Hindu faith. S. was born in an area controlled at that time by the Liberation Tigers of Tamil Eelam (LTTE) and his father allegedly worked as a driver for a man who was an LTTE supporter. Owing to the civil conflict, S. fled with his parents to India in 1989, where he remained until coming to Australia in 2012. V. was born in India, in a family of Sri Lankan nationals who had fled their native country, and she never travelled to Sri Lanka. Her father had allegedly worked in Sri Lanka as a stonemason who built memorials for fallen LTTE soldiers and was targeted as a result.

The complainants arrived in the State Party by boat, from India, on 5 November 2012, as undocumented illegal maritime arrivals. They were held in immigration detention in January 2014, when a data breach occurred⁴ at the Department of Immigration and Border Protection⁵ and, as a result, their details were published on the Internet.

4. No further information is provided about that data breach. ↩
5. Now the Department of Home Affairs. ↩

On 31 January 2017, the complainants applied for a protection visa,⁶ which was refused by the delegate of the Minister for Immigration and Border Protection on 7 July 2017. While the delegate accepted that S. would be unable to recall any episodic memories of his family’s experiences in Sri Lanka up to the point of his departure given his young age at that time, she noted that S. was unable to elaborate or provide additional details about any role his father had held in connection with LTTE as a driver. The delegate also noted that, during the protection visa interview, S. claimed that none of his family members were members of or involved with LTTE. The delegate therefore did not accept that S.’s father had an imputed LTTE profile of interest to either the Indian or Sri Lankan authorities or that S. would be imputed with an adverse profile on account of his father’s alleged activities.

6. The complainants were held in different detention centres until March 2014 and were invited to apply for a protection visa in June 2016. ↩

The delegate accepted that V. feared harassment and discrimination on the basis of her Tamil ethnicity but noted that neither V. nor any of her family members had ever been part of LTTE or shown support for LTTE. Moreover, the level of discrimination and harassment described was not considered to amount to serious harm. While accepting that the complainants’ absence from the country might be noted, the delegate did not accept that this would be sufficient to attract the adverse attention of the Sri Lankan authorities. There had been over 5,000 returnees from India assisted by the Office of the United Nations High Commissioner for Refugees (UNHCR) since the end of the war, without any country information suggesting that they had faced persecution for their extended period of time away from Sri Lanka. The delegate also did not accept V.’s allegation that, as a woman, she would be subjected to physical, mental and sexual torture.

The delegate then admitted that evidence indicated that both complainants had been affected by the data breach at the Department of Immigration and Border Protection and thus the Sri Lankan authorities might have accessed the information released on the Department’s website. As a consequence, both complainants could be identified as persons who had lived and claimed asylum in Australia. However, the delegate examined the country information and concluded that the Sri Lankan authorities would not single them out from other returnees or subject them to detention or questioning separate from the standard practices of re-entry. The delegate also noted that, in its latest guidelines for Sri Lanka, UNHCR did not mention failed asylum-seekers, failed Tamil asylum-seekers or Tamils returning after residence abroad as being at risk of persecution.⁷

7. UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012. ↩

The delegate further noted that country information no longer supported a finding that Tamil ethnicity of itself imputed LTTE membership or a pro-LTTE opinion, even when combined with a person’s place of origin. Country information indicated a marked improvement in the economic and security situation for Tamils in Sri Lanka, including in former LTTE-controlled areas. As such, the complainants were not deemed to have a well-founded fear of persecution for being Tamils from the east of the country or for being from an area previously controlled by LTTE.

As to the complainants’ claim that they had no close relatives or friends in Sri Lanka, the delegate examined country information according to which they would be able to access assistance from the International Organization for Migration on arrival in Sri Lanka, which would support them to relocate and reintegrate into the Sri Lankan community. The delegate also noted that both applicants had completed schooling, been subsequently employed and demonstrated the ability to independently earn a living, travel to Australia and manage their affairs since 2013, without having close family support in the same country.

On 24 April 2018, the Immigration Assessment Authority upheld the delegate’s decision. On 9 September 2019, the Federal Circuit Court of Australia dismissed the complainants’ application for judicial review. On 18 February 2020, the Federal Court of Australia dismissed the complainants’ appeal. On 18 June 2020, the High Court of Australia dismissed the complainants’ application for special leave to appeal.

The complainants then requested the Minister for Immigration and Border Protection to intervene in their case,⁸ invoking their fear of suffering serious harm and their economic situation upon return and V.’s need for kidney dialysis.⁹ On 7 September 2020, the Department of Home Affairs determined that the complainants’ claims did not meet the guidelines for ministerial intervention. In particular, the Department acknowledged that V.’s condition was serious and that treatment in Australia would likely be better than that provided in Sri Lanka. However, the Department also noted that V. had not provided any evidence that indicated she would be unable to access medical treatment for her condition in Sri Lanka and there was no evidence to suggest that she would be denied access to medical services for her medical condition or that the medical services she would receive would expose her to an increased risk of serious harm. As a result, the Department rejected the claim that V.’s medical condition would place her at risk of serious harm in Sri Lanka. The complainants’ request for intervention was therefore not referred to the Minister.

8. The Minister’s guidelines set out the circumstances in which the Minister may wish to consider exercising the ministerial intervention power under section 48B of the Migration Act. Notably, the Minister may wish to consider the section 48B public interest power where there are exceptional circumstances that justify considering new information or where significant changes in circumstances have occurred subsequent to a decision to refuse a protection visa. ↩
9. A medical certificate of 19 March 2020 confirms that V. is in end-stage kidney disease and is awaiting the creation of an arteriovenous fistula to initiate haemodialysis. Permanent residency status will enable the doctors to consider her for renal transplant surgery. ↩

The complainants submit that, if they are returned to Sri Lanka, they face a real risk of being tortured and suffering cruel, inhuman or degrading treatment or punishment, in violation of article 3 of the Convention.

The complainants allege that the fact that no one in their families has ever returned to Sri Lanka, despite being forced to live in difficult conditions in Tamil Nadu in India, could lead to the conclusion that the nature of the LTTE connections that caused their flight in the first place was in fact more serious. S. and also possibly V. face the real risk of prolonged detention in Sri Lanka because of their families’ links to LTTE and the fact that they will not be able to locate any family member to provide them with a place to stay or to pay possible bail for their illegal departures. The Sri Lankan authorities would have no knowledge of S.’s departure from Sri Lanka and therefore would assume that he was legally responsible for that departure. The complainants refer to various news media sources on the political and security situation in Sri Lanka since the election of Mahinda Rajapaksa, former President of Sri Lanka, including the April 2019 Easter bombings, to allege that the political situation in Sri Lanka has worsened for Tamils and the likelihood of being suspected of pro-LTTE sympathies is much higher as a result.

Finally, the complainants note that V. is suffering from significant kidney failure and requires complex treatment. Her health condition also puts her at an even higher risk of severe consequences of a coronavirus disease (COVID-19) infection.

In its observations of 20 August 2021, the State Party challenges the admissibility of the complaint, arguing that the claims made by the complainants are inadmissible ratione materiae because the treatment described in their allegations does not meet the threshold for torture under article 1 of the Convention. It also submits that the complainants’ claims are manifestly unfounded within the meaning of rule 113 (b) of the Committee’s rules of procedure, because their claims have already been considered through comprehensive domestic administrative and judicial processes.

On the merits, the State Party recalls in detail the decisions issued at the domestic level. It submits that the domestic authorities have considered all the claims made by the complainants before the Committee, with the exception of their claim based on the updated country information. However, the State Party notes that the various reports regarding the situation in Sri Lanka do not indicate that the complainants would be personally at risk of harm meeting the definition of torture.

On 8 January 2024, the complainants submitted their comments on the State Party’s observations. In particular, they contested the domestic decisions and provided a further update on the human rights situation in Sri Lanka. They also reported that V. had received a kidney transplant and thus would be particularly vulnerable, in case of prolonged detention to verify her identity, to the well-known lack of medical attention given to those detained by the Sri Lankan authorities.

On 3 December 2024, the State Party provided additional observations. As to the country information, the State Party notes that it does not demonstrate that the complainants would be personally at risk of harm. The State Party also refers to the most recent Country Information Report on Sri Lanka dated 2 May 2024 and published by the Department of Foreign Affairs and Trade of the Government of Australia. That report indicates that, depending on the circumstances of their departure, their personal circumstances and their travel documents, individuals who have sought asylum overseas may face questioning upon their return to Sri Lanka from Sri Lankan immigration authorities, the State Intelligence Service, naval intelligence authorities and the police. Individuals who departed the country illegally will be charged with an offence under the Immigrants and Emigrants Act 1948. Once airport processes are complete, these individuals are presented to court in Negombo (near Colombo Airport) and bailed (with no payment required to secure bail). Once bailed, returnees are free to leave; they do not spend any time in prison. If Negombo court is closed by the time returnees are presented, they will be remanded and presented to court the following day. The Department of Foreign Affairs and Trade estimates that the entire process (including questioning at the airport, court appearance, bail and release) generally takes 12 to 24 hours from the point of arrival, depending on the number of returnees. Recent reporting from Tamil asylum-seekers who had returned to Sri Lanka from Australia indicates that they experienced no mistreatment at the airport and that the overall process was “straightforward”.¹⁰ With respect to the healthcare system in Sri Lanka, “the public health system is free for all Sri Lankan citizens and medicines can be accessed free of charge from government-run hospitals in all provinces”.¹¹

10. Department of Foreign Affairs and Trade, “DFAT Country Information Report Sri Lanka”, 2 May 2024, paras. 5.36, 5.39, 5.41, 5.43 and 5.44. ↩
11. Ibid., para. 2.34. ↩

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. The Committee notes that, in the present case, the State Party has not contested that the complainants have 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 notes that, in the present case, the State Party has contested the admissibility of the communication, stating that it is manifestly unfounded and thus inadmissible pursuant to article 22 (2) of the Convention and rule 113 (b) of the Committee’s rules of procedure. The Committee notes the State Party’s argument that the evidence produced has already been examined by the domestic authorities. The Committee recalls that it is for the courts of the States Parties to the Convention and not for the Committee to evaluate the facts and evidence in a particular case, unless it can be ascertained that the manner in which such facts and evidence were evaluated was clearly arbitrary or amounted to a denial of justice.¹² The Committee gives considerable weight to findings of fact made by organs of the State Party concerned;¹³ 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.¹⁴

12. G.K. v. Switzerland (CAT/C/30/D/219/2002), para. 6.12; S.K. v. Australia (CAT/C/73/D/968/2019), para. 12.5; and Z.S. v. Georgia (CAT/C/70/D/915/2019), para. 7.4. ↩
13. For example, T.D. v. Switzerland (CAT/C/46/D/375/2009), para. 7.7; and Alp v. Denmark (CAT/C/52/D/466/2011), para. 8.3. ↩
14. For example, I.E. v. Switzerland (CAT/C/62/D/683/2015), para. 7.4. See also general comment No. 4 (2017), para. 50. ↩

In the present case, the Committee observes that the State Party’s immigration and judicial authorities thoroughly examined the facts and evidence presented by the complainants and considered that they had not demonstrated that they themselves or their parents had been targeted by the Sri Lankan authorities, that they had a political profile of interest to the Sri Lankan authorities or that the level of harm resulting from their status as failed asylum-seekers or V.’s medical condition would amount to persecution. On this basis, the authorities concluded that the complainants had not established the existence of substantial grounds to show that they would face a foreseeable, real and personal risk of being tortured if returned to Sri Lanka.

The Committee also notes that the complainants contest the assessment made by the authorities of the State Party. However, the Committee observes that the complainants provided no documentation or other evidence to substantiate their assertions of a personal risk and that the authorities of the State Party found, after a thorough assessment of all the facts and evidence presented at different levels of jurisdiction, that the complainants had not provided sufficient evidence that they would run a foreseeable, real and personal risk of being tortured if returned to Sri Lanka. Consequently, the Committee finds that the complainants have not established that the domestic evaluation of the facts and evidence concerning their alleged risk of treatment contrary to the Convention upon return to Sri Lanka suffered from any defects.¹⁵

15. S.K. v. Australia, para. 12.5. ↩

The Committee recalls its earlier decisions in which it found claims to be manifestly unfounded where the author of a communication failed to submit substantiated arguments showing that the danger of being subjected to torture was foreseeable, present, personal and real.¹⁶ The Committee also recalls that, for a claim to be admissible under article 22 of the Convention and rule 113 (b) of its rules of procedure, it must not be manifestly unfounded. In the light of the above, and in the absence of any further relevant information, the Committee concludes that the complainants have failed to substantiate their claims sufficiently for the purpose of admissibility.¹⁷

16. For example, S.M. v. Australia (CAT/C/76/D/981/2020), para. 7.5; N.J. v. Australia (CAT/C/79/D/1021/2020), para. 6.5; H.G. v. Australia (CAT/C/79/D/1066/2021), para. 6.5; and L.S. v. Australia (CAT/C/81/D/1010/2020), para. 7.6. ↩
17. S.K. v. Australia, para. 12.6. ↩

The Committee therefore decides: (a) That the communication is inadmissible under article 22 (2) of the Convention;