CAT/C/71/D/789/2016
4.6
The State party argues that its authorities have considered the complainant’s claims in
detail and determined that his claims for protection were not substantiated and that some of
the claims were exaggerated. It notes that the complainant’s claims have been assessed
against the State party’s non-refoulement obligations and they have been found not to engage
those obligations. It notes that the complainant’s application for a protection visa was rejected
on 17 October 2013. In considering the complainant’s application, the authorities had before
them the transcript of a protection visa interview conducted by an officer of the Department
for Immigration and Border Protection with the complainant in the presence of a Tamil
interpreter, relevant material (such as the UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum Seekers from Sri Lanka) and country information,
including from the Department of Foreign Affairs and Trade of Australia, the Department of
State of the United States of America and the Home Office of the United Kingdom of Great
Britain and Northern Ireland. Based on that information, the authorities concluded that the
complainant had never been of interest to the Sri Lankan authorities, despite his arrest in
2012, and that there was no real chance that he would be subjected to serious or significant
harm when arriving at Colombo airport, while on remand at Negombo prison or afterwards.
4.7
Following the complainant’s appeal of the decision, a hearing was held on 15 January
2015 before the Refugee Review Tribunal. The complainant was able to make oral and
written submissions with the assistance of a Tamil interpreter. He was represented at the
hearing by his registered migration agent. The Tribunal considered all the claims made by
the complainant in his submissions to the Committee. The Tribunal expressed concerns about
the credibility of the complainant’s claims. In particular, it noted significant inconsistencies
between his written submissions and his statutory declaration and it found that some of his
claims were exaggerated or vague. The Tribunal was not satisfied that the complainant had a
well-founded fear of persecution as a young Tamil male with a perceived pro-LTTE stance,
nor on the basis that he grew up in an LTTE-controlled area or that he lived in such an area
after the end of the war.
Complainant’s comments on the State party’s observations on admissibility and the
merits
5.1
On 3 September 2018, the complainant submitted his comments on the State party’s
observations. He maintained that the communication was admissible. He notes that his
account of events was found to be not credible owing to discrepancies in his statements but
argues that his ability to recall certain specific details, such as dates and the length of periods
of time, was affected by his history of torture and trauma. He argues that these inconsistencies
have been afforded disproportionate weight in the assessment of credibility.
5.2
The complainant reiterates his claims that, if returned to Sri Lanka, he would be at
risk of spending an extended period of time in pretrial detention for having attempted to leave
the country illegally. He claims that, as a person who has previously been subjected to torture
and who is imputed to be an LTTE supporter, he would risk being subjected to a real risk of
torture and ill-treatment upon return. He claims that he was not given culturally appropriate
means by which to raise his claims of torture. He did not know that, as a victim of sexual
violence, it was within his rights to request a male lawyer and male interpreter, which would
have made it easier for him to disclose the sexual violence to which he had been subjected.
He should have been asked at the very start of the process, including in the assignment of
government-appointed lawyers and interpreters, if he had claims that required staff or officers
of a specific gender to fulfil those roles. The complainant claims that he was not given a fair
opportunity to present evidence proving that he had been subjected to torture and claims that
the evidence that he was able to produce was not fairly assessed but, rather, that it was
dismissed on the basis of inconsistencies and errors in other parts of his account of the events.
5.3
On 11 September 2019, the complainant submitted additional information arguing that
the publication of the decision of the Federal Circuit Court on his application for judicial
review could expose him and lead the Sri Lankan authorities to identify him, as the decision
contained the dates during which he had been held in detention in Sri Lanka. He claims that
those elements would allow the Sri Lankan authorities to match the published data with their
own information and thereby identify him and his claims.
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