CAT/C/22/D/106/1998
page 4
3.2
The author further states that in view of the fact that he has
previously been subjected to torture and is most probably suffering from a
post-traumatic stress disorder, 2 even the possibility of detention and
interrogation in the future would entail such emotional and physical pain that
it would amount to persecution.
State party's observations
4.1
On 20 February 1998 the Committee, acting through its Special Rapporteur
for new communications, transmitted the communication to the State party for
comments and requested the State party, under rule 108, paragraph 9, of the
rules of procedure, not to expel the author while his communication is under
consideration by the Committee.
4.2
By a submission of 1 September 1998, the State party informed the
Committee that, following its request under rule 108, paragraph 9, the author
would not be expelled from Australian territory until the case had been
examined by the Committee. In view of the circumstances of the author’s case,
it was likely that he would remain in immigration detention until that time;
the Committee was therefore requested to examine the communication as soon as
possible. The State party challenged the admissibility of the communication,
but also addressed the merits of the case.
A.
Observations on admissibility
4.3
With respect to admissibility the State party submits that the
communication is inadmissible because it lacks the minimum substantiation
that would render it compatible with the Convention, in accordance with
the jurisprudence of the Committee. 3 It notes the Committee’s general
comment on the implementation of article 3, according to which it is the
responsibility of the author to establish a prima facie case for the purpose
of admissibility of his or her communication. 4 In the State party's view,
where there is question of possible refoulement there is a particular onus on
the author to substantiate and convincingly plead a prima facie case. Unlike
allegations relating solely to events on the territory of the responding State
party, refoulement cases by their very nature are concerned with events
outside the State party's immediate knowledge and control. The evidence of
the author and alleged victim assumes greater importance.
4.4
The State party argues that the evidence supporting the allegation lacks
credibility, since it is inconsistent, not detailed and not independently
corroborated. Accordingly, the author has not established, prima facie,
substantial grounds for his case.
4.5
On 9 February 1996, the author’s father applied for a Sri Lanka (Special
Assistance) Visa for entry to Australia. These visas were introduced in 1995
for the purpose of assisting Sri Lankans whose lives had been seriously
disrupted by the fighting. At the time of the application, the grant of the
visa was conditional on one of the members of the family unit - “the
applicant” - satisfying criteria that included the following: the applicant
must be a Sri Lankan citizen usually residing in Sri Lanka at the time of the
application; the applicant's life had to have been seriously disrupted by the
fighting in Sri Lanka in the 18 months preceding the date of application; the