CAT/C/68/D/855/2017
detention can in and of itself constitute inhumane treatment, 1 and further asserts that he is at
a heightened risk of being subjected to torture either as an instrument of interrogation or as
ordered by Dahanayake. He submits that assaults against detainees are not only routine, but
also standardized in Sri Lanka.
3.2
The complainant also claims a risk of harm as a failed asylum seeker. Because he
was the only Sinhalese on the boat where 98 other Tamils were on board, the Sri Lankan
authorities would suspect him of having aided sympathizers of the Liberation Tigers of
Tamil Eelam to flee the country.
3.3
The complainant also brings several claims concerning the second hearing and
decision of the Refugee Review Tribunal. First, he contends that the Tribunal erred in
dismissing his concern about confidentiality, although he did not trust that the Australian
authorities would not reveal to Sri Lankan authorities information damaging to him. When
asked about this matter by the Tribunal, he could not answer, as he believed that doing so
would be an act of defiance. Second, the Tribunal failed to consider other possible
motivations of the United People’s Freedom Alliance, such as revenge, for their harassment
of the complainant. Lastly, the Tribunal erred in finding that Bandu, being a politically
influential figure in the Alliance, could protect the complainant. Although the Tribunal
referred to a 2013 report of the Asian Human Rights Commission indicating that Bandu had
assaulted people with impunity to find that he was influential enough to avoid
accountability, the complainant argues that this rather suggests that Bandu’s standing in the
Alliance was weakening and that he had become vulnerable to such accusations concocted
by a more powerful member of the Alliance. The Tribunal also erred in rejecting his
application based on his political inactivity in Australia, as this reasoning does not take into
account the fact that the Alliance’s will to harm him does not depend on his current
political activity, but rather on his connection and past political association with his uncle.
State party’s observations on admissibility and the merits
4.1
On 30 May 2018, the State party submitted its observations on the admissibility and
merits of the communication, stating that the complainant’s claims are inadmissible ratione
materiae and as manifestly unfounded. However, should the Committee consider the
complainant’s allegations admissible, they should be dismissed as being without merit.
4.2
The State party contends that a number of the complainant’s claims regarding the
risk of harm upon his return to Sri Lanka do not amount to torture within the meaning of
article 3 of the Convention. His allegations that he would be targeted by the United
People’s Freedom Alliance through harassment, court proceedings and a political campaign
to damage his uncle are inadmissible ratione materiae, as the obligation of non-refoulement
under article 3 of the Convention is confined to circumstances in which there are substantial
grounds for believing that the returnee would be in danger of being subjected to torture.
The State party further submits that the Committee has maintained a distinction between
torture and treatment that does not meet that threshold, including cruel, inhuman or
degrading treatment or punishment, for the purposes of determining whether article 3 is
engaged. It therefore considers that the complainant’s claims regarding the court action
allegedly instituted against him and attempts to undermine the political career of his uncle
do not meet this threshold and therefore do not engage its non-refoulement obligations
under article 3.
4.3
The State party also submits that the complainant’s claims are inadmissible for being
manifestly unfounded under rule 113, subparagraph (b), of the Committee’s rules of
procedure, as he has failed to establish a prima facie case for the purpose of admissibility.
His claims have been thoroughly considered in a series of domestic proceedings and found
not to engage the State party’s non-refoulement obligations under the Convention or under
the International Covenant on Civil and Political Rights. Robust domestic processes have
considered the claims and determined that they are not credible. Furthermore, the
complainant has not provided any new information in his communication to the Committee.
The State party refers to paragraph 9 of the Committee’s general comment No. 1 (1997) on
the implementation of article 3 of the Convention in the context of article 22, in which the
1
See International Truth and Justice Project Sri Lanka, “Unstopped: 2016/17 Torture in Sri Lanka”
(July 2017).
3