CAT/C/58/D/595/2014
Facts as presented by the complainant
2.1
The complainant arrived in Australia on 11 April 2012 from Sri Lanka, by boat, and
was detained upon arrival. In July 2012, he submitted an application for a protection visa to
the Department of Immigration and Citizenship of the State party on the basis of a risk of
torture and ill-treatment, for the following reasons: (a) he had in the past experienced harm
in Sri Lanka due to his Tamil ethnicity; (b) he bore scarring on his legs, which he alleged
would lead the Sri Lankan authorities to believe that he had been involved in the past with
the Liberation Tigers of Tamil Eelam; and (c) he had departed from Sri Lanka illegally. On
10 October 2012, the Australian immigration authorities rejected the application on the
grounds that the complainant “does not face a chance of real persecution in Sri Lanka”
since “he lived there most of his life without incident”, and if returned “it is open to him to
return to his village or to relocate anywhere else and to live there without a real chance of
serious harm”.
2.2
On 17 October 2012, the complainant submitted an appeal to the Refugee Review
Tribunal. On 13 February 2013, the Tribunal upheld the decision of the immigration
authorities and dismissed the appeal, on the grounds that the complainant did not satisfy the
criteria to be considered a person to whom the State party had protection obligations. On
20 March 2013, the complainant applied for a judicial review of the Tribunal’s decision to
the Federal Circuit Court. The latter dismissed that appeal on 17 January 2014. On
21 February 2014, the complainant submitted an application for ministerial intervention
under section 46A (2) of the Migration Act 1958 to the Minister for Immigration and
Border Protection. On 8 April 2014, the complainant received a letter informing him that
his application for ministerial intervention had been rejected as “not being in the public
interest”.
2.3
The complainant submits that he has exhausted all available and effective domestic
remedies. He maintains that he should not be required to pursue further remedies in higher
Australian courts, since such litigation may take a prolonged period of time to be finalized
and the complainant is at risk of removal from the country if his bridging visa is cancelled
by the Department of Immigration and Border Protection in the meantime.
The complaint
3.1
The complainant claimed that there were substantial grounds for believing that he
would be tortured if returned to Sri Lanka. He maintained that, as a young Tamil male from
the north of Sri Lanka, with significant scarring on his leg from shrapnel, he would be
suspected of having been a combatant in the closing period of the war between the Sri
Lanka Army and the Liberation Tigers of Tamil Eelam and was therefore likely to be
detained for a long period without charge and interrogated with the use of torture. He also
maintained that, having failed in his claim for refugee status in Australia, he would be held
in remand at Negombo Prison for contravention of the Immigrants and Emigrants Act, and
may be charged and face a long period of imprisonment for illegal departure.
3.2
The complainant also claimed that the Government believed that groups abroad that
were linked to the Liberation Tigers of Tamil Eelam and that had managed to flee Sri
Lanka during the Humanitarian Operation were consistently trying to contact various
people within Sri Lanka and encourage them to regroup militarily. The complainant
referred to a statement made on 11 January 2012 by the Minister of Defence of Sri Lanka
to that effect and claimed that should he be returned to Sri Lanka, he would be arbitrarily
detained and interrogated on that very point and would be at risk of torture and other illtreatment. The complainant also maintained that relocation internally within Sri Lanka was
not an option for a person at real risk from the Sri Lankan authorities, since the Government
now controlled the whole of Sri Lanka and illegally departed persons and/or failed asylum
2