CAT/C/71/D/789/2016

Facts as submitted by the complainant
2.1
The complainant is of Tamil ethnicity. After the complainant’s father died in 2004,
the complainant’s uncle began to care for the complainant’s family. The family were
fisherfolk and travelled regularly from Uddapu to Mullaitivu on the eastern coast of Sri Lanka
to fish. Udappu was under the control of the Sri Lanka Army while Mullaitivu was under the
control of the Liberation Tigers of Tamil Eelam (LTTE). The fact that family members
regularly crossed into an LTTE-controlled area brought them under suspicion of the Sri
Lanka Army.
2.2
In 2007, members of the Criminal Investigations Department of the police force of Sri
Lanka came to the complainant’s uncle’s house and took the complainant’s uncle away. They
said that they were taking him to a police station but, when the family inquired about his
whereabouts, they were initially told he was not at the station. When the family was
eventually allowed to see him, they found him injured and bleeding. The following week,
members of the Criminal Investigations Department interviewed all the members of the
family. They accused them of hiding weapons and of helping LTTE. The complainant’s uncle
was released in March 2008.
2.3
The family continued to be harassed by the authorities and the complainant feared for
his safety. In July 2011, he left for Dubai, United Arab Emirates, by paying bribes to
immigration officials through an agent. He stayed in Dubai for about nine months but
returned to Sri Lanka when his uncle fell ill.
2.4
About two months after the complainant’s return, in May 2012, he and his brother
went to attend festivities with friends. While they were at a bus stop, they were detained
before being taken to Colombo, where they were kept in incommunicado detention for three
days. A large number of other people were also arrested at the same time in different locations.
The complainant was accused of having links with LTTE and of attempting to leave the
country illegally. The interrogators beat him and even squeezed his testicles. The complainant
did not disclose this to the State party authorities during his initial application for asylum
because he was ashamed.
2.5
The complainant and his brother, together with most of the other people detained on
the same occasion, were charged with having attempted to leave the country illegally and
were released on bail. They were photographed by the press and a number of articles were
published. In total, 119 people were arrested on that occasion, 113 of whom were later
charged – seven with having organized for migrants to be taken from Sri Lanka by boat and
the rest, including the complainant, with having attempted to illegally depart from Sri Lanka.
The complainant left Sri Lanka before the start of the trial and arrived in Australia in July
2012.
2.6
The complainant’s application for a protection visa was rejected by the Department
for Immigration and Border Protection on 17 October 2013. The Department noted that, at
the time the complainant travelled to Dubai, it had been three years since his uncle had been
released from prison and that, during that period, neither the complainant nor any other
member of his family appeared to have had any particular problems with the local authorities.
The Department concluded that the complainant had travelled to Dubai for employment
opportunities and not for fear of harm. It further found, based on court transcripts, that the
complainant had not been arrested in 2012 in a random act but while he was preparing to
depart from Sri Lanka illegally. Regarding the complainant’s claim that he had been illtreated while in custody, the Department found, given the large number of persons arrested,
the routine nature of his case and the complainant’s vagueness in his description of what
exactly had happened, that he had not been subjected to ill-treatment. Moreover, the
Department noted that, although the complainant’s brother too had been arrested, the brother
had stayed in Sri Lanka without incurring harm. The Department concluded that there was
no evidence to indicate that the Sri Lankan authorities had ever considered the complainant
to have had any involvement with LTTE and that he would therefore not be at risk of illtreatment in Sri Lanka.
2.7
The complainant appealed the decision of the Department for Immigration and Border
Protection to the Refugee Review Tribunal. During the interview held in the context of that
appeal, the complainant stated that he had been penetrated and beaten with a stick while
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