CAT/C/66/D/749/2016
district, the decision maker did not consider that the complainant would be targeted
personally in connection with the election.
4.6
In order to support his claim of being abducted the second time, the complainant
submitted a “diagnosis ticket” from the National Hospital of Sri Lanka indicating that he
had been physically assaulted and suffered an injury to the head. The decision maker
concluded that the document had been fraudulently created for the purposes of supporting
the complainant’s claims.
4.7
Concerning the enmity of Y towards the complainant, the decision maker concluded
that if Y wished to harm the complainant and was as influential and intimidating as the
complainant claimed, it seemed implausible that the complainant could have had his gem
dealers licence renewed on 18 January 2011. In addition, considering that the complainant’s
visa application had been endorsed by the Sri Lankan Government, the decision maker did
not accept that the complainant had any enemies within the Government.
4.8
When considering the complainant’s application for a merits review dated 25
February 2013, the Refugee Review Tribunal found some of the evidence to be vague,
implausible and contradictory and found the complainant not to be a credible witness. It
also noted that the complainant had left Sri Lanka on his genuine passport and was able to
renew his gem dealer’s licence after the first kidnapping, which was an indication that he
was not of interest to the authorities. Regarding the complainant’s allegations that he would
be at risk of harm upon return as a failed asylum seeker, the Tribunal found that country
information on this matter related only to people intercepted by the Australian authorities
upon travelling to Australia and then returning to Sri Lanka, which was not the
complainant’s case. The complainant had obtained an Australian visa, and there was no
evidence to suggest that the Sri Lankan authorities would become aware that he had sought
asylum in Australia. The Tribunal dismissed the complainant’s claims that he would be in
danger because of his Muslim religion, in the absence of any supporting evidence in the
country information. The complainant’s claim that because he spoke Tamil he would be
suspected of sympathizing with the Tamil cause and harmed on that basis was also found to
be unsubstantiated.
Complainant’s comments on the State party’s observations
5.1
On 14 August 2018, the complainant submitted his comments on the State party’s
observations.
5.2
On the non-exhaustion of domestic remedies, the complainant claims that he did
apply to the Federal Circuit Court but was given a negative opinion as to his prospects of
success by his barrister. The complainant refers to section 486I of the Migration Act, which
is reproduced on the application form for the Federal Circuit Court.2 The complainant had
no choice but to withdraw his application, and that prevented him from applying to any
other court. He repeats that he has exhausted all domestic remedies available to him.
5.3
The complainant disagrees with the decision maker and the Tribunal’s findings on
the lack of credibility in his case and asks the Committee to come to its own conclusion on
the matter, in view of the torture he faces upon return to Sri Lanka. He claims that the
findings against him were based on poor facts, confusion about the timing of the
kidnapping incidents and the nature of the documents in the case. The findings were also
affected by outdated and incomplete research.
5.4
The complainant reiterates that he fears Y, who is an influential, corrupt and violent
person. The complainant claims that he is facing serious legal proceedings with a possible
2
Section 486I reads as follows:
Lawyer’s certification
(1) A lawyer must not file a document commencing migration litigation, unless the lawyer
certifies in writing that there are reasonable grounds for believing that the migration litigation has
a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document
that, under subsection (1), must be certified and it has not been.
4
GE.19-14946