CAT/C/71/D/754/2016
security forces, including failed asylum seekers and anyone remotely connected with the
losing side in the civil war, faces a real risk of cruel treatment justifying the granting of
international protection.5 There is thus a consistent pattern of gross, flagrant or mass human
rights violations in Sri Lanka.
State party’s observations on admissibility
4.1
The State party submitted its observations on admissibility by note verbale of 14
September 2016. With reference to rule 113 (a) of the Committee’s rules of procedure, it
submits that the complaint is inadmissible ratione materiae, because the claims do not fall
within the definition of “torture” contained in article 1 of the Convention. The complainant
does not articulate the specific nature of the threatening telephone calls. Nevertheless, before
the Refugee Review Tribunal, he claimed that the caller had threatened to shoot him. The
State party adds that it is unaware that the Committee has formed the view that threats alone
can constitute torture.6 Moreover, the complainant does not identify the caller(s) nor assert
that they are public officials or acted in an official capacity, other than to imply that they are
“well connected politically”. Given that the claim regarding the calls does not involve torture,
it is inadmissible ratione materiae.
4.2
The complainant’s claim of a risk of cruel, inhuman or degrading treatment at the
hands of the Criminal Investigation Department and in the Negombo Prison is also
inadmissible ratione materiae, as the non-refoulement obligation in article 3 of the
Convention relates to a risk of torture and does not cover cruel, inhuman or degrading
treatment or punishment.7
4.3
The State party additionally submits that the complaint is inadmissible as manifestly
unfounded, with reference to article 22 (2) of the Convention and rule 133 (b) of the rules of
procedure. It is for the complainant to demonstrate substantial grounds for believing that he
would be in danger of being subjected to torture.8 This requires showing a foreseeable, real
and personal risk of being subjected to torture, beyond mere theory and suspicion. 9 With
respect to his claim that the conditions in the Negombo Prison constitute degrading treatment,
the State party refers to the views in G.R. v. Australia, where the Committee found that the
complainant had relied on general information, including on the situation in the Negombo
Prison, without demonstrating a personal risk.10 In the present case, the complainant has not
provided credible material either to demonstrate a personal risk of harm in the Negombo
Prison on account of his illegal departure, Tamil ethnicity or any political connections.
4.4
The State party further refers to the complainant’s claims that, as a failed asylum
seeker and owing to his ethnicity, he is at risk of harm upon return to Sri Lanka because
LTTE sentiments will be imputed to him, and he will be subjected to closer scrutiny because
of his Muslim faith and involvement with the election violence. However, the existence of a
general risk of violence does not suffice to show a personal risk of being subjected to torture. 11
The complainant has not prima facie established such a risk.
4.5
Moreover, the issues raised by the complainant were thoroughly considered in robust
domestic processes. The Australian Department of Immigration and Border Protection and
the Refugee Review Tribunal considered country information provided by governmental and
5
6
7
8
9
10
11
Yasmin Sooka, the Bar Human Rights Committee of England and Wales and the International Truth
and Justice Project Sri Lanka, “An unfinished war: torture and sexual violence in Sri Lanka 2009–
2014”, March 2014, p. 5.
The State party refers to R.S. et al. v. Switzerland (CAT/C/53/D/482/2011), para. 8.4. The State party
adds that, in the Committee’s conclusions and recommendations to Israel, adopted in 1997, the
Committee had formed the view that threats, including death threats, in combination with restraining
in very painful conditions, hooding under special conditions, sounding of loud music for prolonged
periods, sleep deprivation for prolonged periods, violent shaking, and using cold air to chill could
constitute torture (A/52/44, para. 257).
The State party refers to its submissions in Y.Z.S. v. Australia (CAT/C/49/D/417/2010), para. 4.10.
Paez v. Sweden (CAT/C/18/D/39/1996), para. 14.5.
A.R. v. Netherlands (CAT/C/31/D/203/2002), para. 7.3.
G.R. v. Australia (CAT/C/57/D/605/2014), paras. 9.7–9.8.
G.R.B. v. Sweden (CAT/C/20/D/83/1997), para. 6.3.
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