CAT/C/66/D/749/2016
The complaint
3.1
The complainant claims that, if returned to Sri Lanka, he will be at risk of treatment
in violation of article 3 of the Convention. He submits that he is fleeing the arbitrary actions
of a high-ranking Sri Lankan politician and that internal relocation is not an option for a
person at real risk from Sri Lankan members and “thugs” of the United People’s Freedom
Party Alliance. The country is small, and the political networks of this party cover the
whole country.
3.2
The complainant fears that, in addition, as an involuntary returnee who has lived
among the Tamil diaspora in Australia for the last five years, he will be targeted by the Sri
Lankan authorities for interrogation about his activities and associates in Australia. He fears
that during this process, he will be tortured and treated in an inhuman, cruel and degrading
manner.
State party’s observations on admissibility and the merits
4.1
On 6 October 2016, the State party submitted its observations on admissibility and
the merits of the complaint, stating that the complainant’s claims were inadmissible due to
non-exhaustion of domestic remedies and as manifestly unfounded. If the Committee
considers the complaint admissible, the State party submits that it is without merit because
the author failed to support his allegations by providing sufficient evidence that he would
be at present and personal risk of torture upon return to Sri Lanka.
4.2
The State party submits that the complainant has not exhausted domestic remedies
under article 22 (5) (b) of the Convention and the Committee’s rules of procedure (rules 97
(c) and 113 (e)). He withdrew his application to the Federal Circuit Court on 8 March 2016,
allegedly acting upon the advice of his legal counsel that the case had no “reasonable
prospects of success”. The complainant has consequently not exhausted all domestic
remedies available to him in the form of judicial review (in either the Federal Circuit Court
or, potentially, the Federal Court of Australia and the High Court).
4.3
The State party submits that the complainant’s claims are manifestly unfounded and
he has failed to establish a prima facie case for the purpose of admissibility. It notes that the
complainant’s claims have been thoroughly considered by several domestic decision
makers and found not to engage the country’s non-refoulement obligations under the
Convention. The State party argues that the claims regarding cruel, inhuman or degrading
treatment or punishment raised by the complainant do not fall under the definition of torture
provided in article 1 of the Convention. Therefore, they are outside of the scope of the State
party’s non-refoulement obligations under article 3 of the Convention and should be
dismissed as inadmissible. The complainant has not provided any new claims or evidence
in his submissions to the Committee that have not already been considered by the domestic
administrative and judicial processes, and the State party asks the Committee to accept that
these claims have been thoroughly assessed through the domestic process.
4.4
The State party refers to the Committee’s statement in its general comment No. 1
(1997) on the implementation of article 3 in the context of article 22 1 that, as it is not an
appellate or judicial body, it gives considerable weight to findings of fact that are made by
organs of a State party. The State party asks the Committee to give such weight to the
finding of its domestic processes that the claims of the complainant are without merit and
should be dismissed.
4.5
On the merits of the communication, the State party summarizes each step of the
process undertaken by the complainant and submits that the decisions taken in his case
were based on personal interviews and available country information. The decision maker
who reviewed his protection visa application did not accept that the complainant had been
kidnapped on 7 April 2010. The decision maker accepted that the complainant’s name was
included as part of a non-aligned independent group taking part in the 2010 parliamentary
elections. However, because the complainant was one of 451 candidates in his electoral
1
GE.19-14946
Replaced by general comment No. 4 (2017).
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