Advance unedited version CAT/C/60/D/716/2015
returnees from Australia who had been allegedly harassed by paramilitary groups allied to
the government following their release from the airport and their return to their homes in
Batticaloa, and noted that theses persons claimed that they were campaign workers from the
opposition Tamil National Alliance (TNA). This was not the complainant’s case. The RRT
also concluded that the complainant would not be at risk of torture due to his departure
from Sri Lanka in breach of its immigrations laws. It noted that returnees in this situation
may be arrested at the airport and brought before court to apply for bail; that bail was
routinely granted; and that in general penalties eventually imposed by courts took the form
of fines. Finally, it noted that there was no information that supported the complainant’s
allegation that he could be at risk due to his Hindu faith.
2.12
The complainant provided to the Committee a document according to which on 4 July
2013, his father reported to the Valaichenai Police Station that the complainant was a
supporter of the “Tamil political party in [their] area”; that a group of four persons came to
his house on 20 March 2012 looking for him, that he did not go out because he feared to be
attacked; and that after his departure from the country, the persons looked for him again on
7 October and 27 December 2012 and 2 July 2013.4
2.13
On 24 July 2013, the complainant filed an application for judicial review before the Federal
Circuit Court of Australia (FCCA) and claimed that the RRT’s decision was affected by a
legal error. On 5 September 2013, the complainant attended a directions hearing with the
assistance of a Tamil interpreter but without counsel. The Court gave him leave to file an
amended application and to submit further evidence. On 12 December 2013, the FCCA
confirmed the RRT’s decision and dismissed the complainant’s appeal. In its decision, the
Court noted that the complainant had difficulties in understanding the question poses to
him; and that he argued that the RRT failed to take into due consideration the evidence
submitted by him, in particular a letter from his father that allegedly supported his
allegations; and that he received legal assistance from different professionals within the
previous proceedings. In this regard, the FCCA noted he received legal assistance under the
former Immigration Advice and Application Assistance Scheme (IAAAS scheme) of a high
professional standard; that he never raised any issue about his legal representation with the
RRT; and that in the circumstances it could not be concluded that this impacted on the
outcome of his visa request.
2.14
On 31 December 2013, the complainant lodged an application for leave to appeal to the
Federal Court of Australia (FCA), claiming that the FCCA failed to take into due
consideration his allegations. Since the complainant appeared unrepresented, the FCA
adjourned the hearing originally scheduled on 19 May 2014 in order to enable him to be
referred for pro bono legal assistance and be legally represented in the proceedings. On 1
April 2015, the FCA examined the complainant’s allegations and dismissed his appeal as it
found that there was no legal error with the RRT’s decision.
2.15
On 7 May or 17 June 2015 the complainant filed an application to the Minister for
Immigration and Citizenship to request Ministerial Intervention under section 417 of the
Migration Act of 1958, which was rejected by the Minister on 15 September 2015. The
complainant submits that he has exhausted domestic remedies.
The complaint
3.1
The complainant submits that his deportation to Sri Lanka by the State party would
constitute a violation of its obligations under articles 1 and 3 of the Convention since he
would be at risk of being tortured by Sri Lankan officials or members of the Muslim
community due to his Tamil ethnicity, his father role as a leader and custodian of a Hindu
4
The complainant attaches a copy of the complaint to the police in Tamil language and a translation
into English as an annex.
5