Treatment or Punishment. Counsel argues that there were substantial grounds for
believing that the complainant would be in danger of being subjected to torture if
deported. Given the absolute prohibition to expel a person where he risks being
subjected to torture, counsel submits that the complainant should not have been
removed.
3.3
Counsel claims that the evidence of a consistent pattern of gross and massive
violations of human rights in Sri Lanka prohibits the Government of Australia from
expelling the complainant.
State party’s observations on admissibility and merits
4.1
The State party submits that it has been its practice to comply with requests for
interim measures by the Committee whenever it has been in a position to do so.
However, the complainant was removed from Australia on 21 June 1999 at 4.30 a.m.
Geneva time. The text of the complaint and the Committee’s request was received
after the complainant had been removed from Australia, i.e. in the ordinary mail at the
Permanent Mission of Australia in Geneva in the late morning of 21 June 1999, and,
subsequently, on the same day at 2.36 p.m. Geneva time on the Mission’s fax
machine.
4.2
The State party contests the allegations of procedural shortcomings with
regard to the handling of evidence when considering the case of the complainant. The
State party submits that the complainant has provided no evidence that the alleged
procedural irregularities amount to a breach of any of the provisions of the
Convention and, therefore, this claim should be dismissed as inadmissible ratione
materiae. Alternatively, the State party submits that, except in limited circumstances,
it is beyond the competence of the Committee to review findings of fact or the
interpretation of domestic legislation by national organs of the State party.
Furthermore, the State party submits that any issue arising from possible errors of law
by the first RRT decision would have been rectified subsequently. The complainant
failed to refer to the second and third decisions of the Federal Court in this regard.
4.3
The State party contests that there are substantial grounds for believing that
the complainant would be in danger of being subjected to torture if returned to Sri
Lanka. The State party submits that the risk of ill-treatment by the LTTE alleged by
the complainant does not raise an issue for consideration by the Committee, because
the complainant failed to provide any evidence that the LTTE would act with the
consent or acquiescence of the Sri Lankan authorities. Furthermore, the complainant
failed to demonstrate that the LTTE are exercising quasi-governmental authority over
an area to which he is to be returned and, therefore, could be regarded as an agent for
the purposes of article 3 of the Convention. Alternatively, the State party submits that
the complainant has failed to submit that he is at risk of being tortured by the LTTE.
In this regard, the State party requests that the complaint be declared inadmissible
ratione materiae. With regard to the risk of being tortured by Sri Lankan authorities,
the State party submits that the complainant’s evidence lacks credibility or,
alternatively, is not sufficient to establish a real, foreseeable and personal risk of being
subjected to torture.
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