CAT/C/63/D/618/2014
Alliance after the 2010 elections. It did not accept that there was a real chance that he
would be persecuted, since he was involved as an ordinary campaign worker only a few
months before the elections and he was not involved in any political activities after the
elections. The Tribunal also rejected the author’s claim that he was at risk owing to being
Catholic,2 as he lived in a district where almost a third of all residents are Catholic. It also
rejected his claim regarding the risks he faces for being a failed asylum seeker returning to
Sri Lanka, as he is of Sinhalese ethnicity and is not accused of being in the Liberation
Tigers of Tamil Eelam.
2.6
On 9 January 2013, the complainant applied to the Federal Circuit Court of Australia
for a judicial review of the Refugee Review Tribunal decision. The Court dismissed the
matter on 22 May 2013 on the grounds that the complainant had not been targeted by the
United People’s Freedom Alliance after the 2010 elections. Therefore, the Court considered
that the risk of being persecuted due to his involvement as a campaign worker some months
before the elections did not stand and that there was no evidence of his substantive political
involvement after the elections. Subsequently, he challenged the Federal Circuit Court
decision before the Federal Court of Australia, which dismissed the appeal on 16 August
2013. On 14 October 2013, the complainant’s counsel requested the Minister of the
Department of Immigration, Multicultural Affairs and Citizenship to undertake a ministerial
intervention under section 46 A of the Migration Act 1958 (Cth), which states that the
Minister may grant a visa to an unsuccessful applicant if he or she thinks that it is in the
public interest to do so. However, the complainant’s request for a ministerial intervention
was refused on 4 February 2014.
2.7
The complainant claims that he has exhausted all available and effective domestic
remedies capable of preventing his removal, asserting that he should not be required to
pursue further remedies in higher courts, as those litigations may take prolonged periods of
time to be finalized, while he is at risk of imminent removal.3 He affirms that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
The complaint
3.1
The complainant claims that Australia, by forcibly returning him to Sri Lanka,
would violate his rights under articles 1 and 3 of the Convention. He claims that upon
removal to Sri Lanka, he will be at serious risk of torture and inhuman or degrading
treatment, particularly at the hands of the Criminal Investigation Department of the Sri
Lankan Police and the Sri Lankan Army, as he is suspected of being a member and
supporter of the Liberation Tigers of Tamil Eelam.
3.2
He fears that he would be arrested upon arrival, questioned and detained on remand
at Negombo prison, particularly as he left his country illegally, in contravention of section
45 (1) (b) of the Immigrants and Emigrants Act. He adds that it has been well documented
that the conditions in Negombo Remand Unit are cramped, unsanitary and unhygienic, and
that, regardless of the length of time spent on remand, his detention would constitute
inhuman and degrading treatment. He claims that he fears that his Sinhalese ethnicity will
increase his risk of harm as he will be seen as a traitor. Moreover, the complainant argues
that internal relocation is not an option available to him, as he will immediately be detected
and taken into custody by the Sri Lankan authorities upon arrival at Colombo Airport,
where he would be questioned and interrogated as he left illegally and will be returning as a
failed asylum seeker without a passport.
3.3
The author submits that he is at risk as the Sri Lankan authorities may become aware
of his involvement in people smuggling since he was a member of the crew on the boat on
which he came to Australia. He considers himself to be at risk of ill-treatment or harm from
torture during the process of his investigation and indictment, and could possibly face a
lengthy sentence for contravening section 45 C of the Immigrants and Emigrants Act. He
2
3
Before the Refugee Review Tribunal, the complainant claimed that, being Catholic, he feared harm
from Buddhist extremists. He did not make that argument in his submission to the Committee.
This argument does not appear to be relevant, given that the complainant has sought judicial review
of the Refugee Review Tribunal decision and lodged an appeal before the Federal Court.
3