CAT/C/67/D/723/2015
3.2
The complainant claims that he is at risk of harm also because of his illegal
departure from Sri Lanka and his profile as a failed asylum seeker. He asserts that there is
no safe place for him in Sri Lanka, since the Government is in control of the whole
territory. Therefore, if he is forcibly returned there, he will be detained upon arrival and
held at the Negombo remand prison for interrogation as an asylum seeker who left the
country illegally and returned without a passport. According to the complainant, it is well
documented that the prison is cramped, unsanitary and unhygienic, and that it is
overcrowded to the point that prisoners must take turns to sleep, which in itself constitutes
degrading treatment or punishment, regardless of the length of time spent there on remand.
3.3
The complainant makes reference to certain changes to the Migration Act 1958,
which, according to him, show an alarming tendency on the part of legislators to weaken
the State party’s non-refoulement obligations under international law.
State party’s observations on admissibility and the merits
4.1
On 12 June 2016, the State party challenged the admissibility of the communication.
The State party argues that the complainant’s claim under article 3 is manifestly unfounded
and should therefore be declared inadmissible pursuant to rule 113 (b) of the Committee’s
rules of procedure for lack of sufficient substantiation. The State party submits that, for the
purposes of the Committee’s consideration of the merits of the complaint, the
complainant’s claims are without merit, as they have not been supported by evidence of
substantial grounds for believing that the complainant would be in danger of being tortured,
as defined by article 1 of the Convention, upon his return to Sri Lanka. The State party
requests the Committee to lift the request for interim measures under rule 114 of the rules
of procedure.
4.2
As to the issue of admissibility, the State party submits that most of the
complainant’s claims have been thoroughly considered in a series of domestic decisionmaking processes and, not being credible, they have been found not to engage its nonrefoulement obligations under the Convention. Even though the State party acknowledges
that complete accuracy is seldom to be expected by victims of torture, 2 and submits that this
principle was duly taken into account by the decision maker in forming views on the
complainant’s credibility, the authorities nonetheless found the complainant’s claims to
have been fabricated for the occasion. The State party further refers to the Committee’s
general comment No. 1 (1997) on the implementation of article 3 in the context of article
22 (para. 9),3 in which the Committee states that, as it is not an appellate or quasi-judicial
body, it gives considerable weight to findings of fact that are made by organs of a State
party.
4.3
The State party provides thorough information on the holdings adopted by its
domestic authorities. With regard to the proceedings before the Department of Immigration
and Border Protection, the State party notes that the decision maker accepted the
complainant’s claim that he had no involvement with the Tamil Tigers in Sri Lanka and that
he does not know anyone who was involved with the Tamil Tigers. The decision maker
also considered country information indicating that the authorities of Sri Lanka and the
Tamil Tigers were engaged in conflict in and around Mullaitivu in 2015. The decision
maker accepted the complainant’s claim that he had been questioned by the Sri Lanka
Army along with other Tamil fishermen around 2005, and that he had been physically
assaulted on that occasion. However, the decision maker did not accept, given the absence
of any links to the Tamil Tigers, that the complainant remained of any ongoing interest to
the authorities of Sri Lanka. The Department examined the complainant’s claims relating to
the alleged grease man incident in September 2011. It noted a number of inconsistencies in
the complainant’s statements, and thus it did not accept as a fact that the complainant had
been involved in an altercation with a grease man, as claimed, nor did it accept that he
would be of interest to the authorities of Sri Lanka as a result of the incident. Furthermore,
the Department did not find it credible that the complainant had been threatened by a group
2
3
Alan v. Switzerland (CAT/C/16/D/21/1995), para. 11.3.
At its sixty-second session, the Committee adopted general comment No. 4 (2017) on the
implementation of article 3 in the context of article 22, which supersedes general comment No. 1.
3