CAT/C/62/D/696/2015
though the complainant did not appeal to the Council of State because he thought that it
was ineffective.3
5.3
The complainant notes that, under article 30 (a) of the Dutch Alien Act, the Council
of State rejects appeals that do not provide new facts of information. Therefore, the Council
of State would only decide on the formal question of whether the complainant’s
supplementary medical report and further information on conditions in Sri Lanka constitute
new evidence, and does not examine the substance of the case.
5.4
Finally, the complainant refers to a copy of an email that his counsel received
unintentionally, concerning his first asylum application. In the email, an IND employee
advises the Secretary of State not to appeal the 21 August 2012 court decision, because
IND had not discussed the credibility of the complainant’s statements regarding his two
arrests, therefore those arrests should be considered as credible. The employee wrote that he
regretted that the court had not addressed the connection between the complainant’s scars
and his statements about the cause of the scars, as well as possible violation of article 3 of
the European Convention on Human Rights, considering the Tamil ethnicity of the
complainant.
State party’s observations on the merits
6.1
In a submission dated 28 October 2016, the State party provided information on the
merits of the case. On 2 October 2010, the complainant entered the Netherlands and
reported to the Dutch authorities in order to submit an application for asylum. He was given
time to rest and prepare his asylum application. On 8 October 2010, a medical examination
was carried out to determine whether the complainant could be interviewed. On 9 October
2010, the complainant submitted his application for a temporary asylum residence permit
and, on that same day, the first interview was held. During the second interview on 11
October 2010, the complainant was given the opportunity to elaborate on his asylum
application. On 27 January 2011 and on 1 March 2011, a supplementary interview was held
about the complainant’s reasons for leaving his country of origin. Reports were drawn up of
the interviews, which were conducted in Tamil with the help of an interpreter. The
complainant was given the opportunity to make substantive changes and/or additions in
writing to the reports of the interviews, which he did by submitting corrections and
additions on 10 October 2010, 13 December 2010 and 10 April 2011. On 14 May 2011, the
complainant was given written notification of the State party’s intent to deny his asylum
application. He was given the opportunity to respond in writing to the notification of intent,
which he did by letter of 27 June 2011. The asylum application was denied by decision of
15 August 2011.
6.2
On 12 September 2011, the complainant lodged an application with The Hague
District Court for judicial review of the decision denying asylum. The application for
review was heard in open court on 27 June 2012. On 21 August 2012, the court declared the
application for review well founded.
6.3
On 19 September 2012, the State Secretary for Security and Justice lodged an appeal
against the 21 August 2012 court decision with the Administrative Jurisdiction Division of
the Council of State. By judgment of 25 August 2014, the Council of State declared the
appeal well founded and overturned the decision of The Hague District Court. With that
judgment, the complainant’s domestic remedies were exhausted.
6.4
On 15 April 2015, the complainant submitted a new application for a temporary
asylum resident permit. He was interviewed on the same day in Tamil through an
interpreter. On 17 April 2015, the complainant was notified that the State party intended to
deny the asylum application. On 20 April 2015, he provided his written opinion about the
notification of intent to deny his asylum application. On 21 April 2015, the complainant’s
second asylum application was denied.
3
4
See European Court of Human Rights, Salah Sheekh v. the Netherlands (application No. 1948/04),
decision of 11 January 2007, para. 121: “An applicant cannot be regarded as having failed to exhaust
domestic remedies if he or she can show, by providing relevant domestic case law or any other
suitable evidence, that an available remedy which he or she has not used was bound to fail.”