CAT/C/61/D/713/2015
as a failed asylum seeker. The decision maker also concluded that the complainant did not
qualify for complementary protection under section 36 (2) (aa) of the Migration Act, which
reflect the State party’s non-refoulement obligations under the Convention.
4.4
The complainant subsequently applied to the Refugee Review Tribunal for a merits
review on 1 November 2012. He was present at the Tribunal hearing, assisted by a
registered migration agent and a Tamil-language interpreter and was able to make oral
submissions himself and through his agent. The Tribunal had doubts about the credibility of
the complainant’s claims and considered some of the evidence that he presented to be
vague and lacking in relevant detail. The Tribunal did not accept the complainant’s claims
that officers of the Criminal Investigation Department had visited his home on multiple
occasions since he left Sri Lanka or that he was of any interest to the Sri Lanka Army or
paramilitary groups. The Tribunal concluded that the complainant did not have an adverse
profile at the time that he had left Sri Lanka nor had he been singled out for harm or
otherwise threatened by paramilitary groups. The Tribunal accepted that the complainant
would be charged with offences under the Immigrants and Emigrants Act (1949) and that
he might be detained for a number of days before most likely being fined, as his ultimate
penalty. However, based on the available country information, the Tribunal did not consider
that the complainant would be detained for a prolonged period or otherwise face the risk of
significant harm, including torture, upon return to Sri Lanka. On 28 June 2013, the Tribunal
upheld the decision not to grant the complainant a protection visa.
4.5
On 28 July 2014, the Federal Circuit Court of Australia dismissed the complainant’s
application for a judicial review of the decision of the Refugee Review Tribunal, finding
that the Tribunal had considered all the complainant’s claims and taken into account all
relevant considerations in making its decision.
4.6
On 28 July 2014, the complainant requested Ministerial intervention and put forward
three new claims. He claimed that: if sent back to Sri Lanka, he would be found to have
violated section 45(1) (b) of the Immigrants and Emigrants Act (illegal departure from Sri
Lanka); on this basis, he would suffer cruel, inhuman or degrading treatment because he
would be prosecuted and punished under that legislation; and the penalties that he would
face could be harsher owing to his perceived connection to or support for LTTE. On 15
September 2015, the Assistant Minister for Immigration and Border Protection declined to
exercise her power under section 417 of the Migration Act.
4.7
The State party provided clarification on the new evidence that the complainant
submitted to the Committee, namely, a letter written by the complainant’s neighbour in Sri
Lanka, who claims to have been an eye witness to the second white van abduction attempt
made on the complainant; a complaint filed by the complainant with the police on 2 May
2012 about one of the attempted white van abductions; and an extract from a report of the
United Nations Office of the High Commissioner for Human Rights as evidence of white
van abductions in Sri Lanka. The State party submits that the first two pieces of evidence
are inconsistent with each other and that the claims that they are meant to support had been
considered and dismissed by the domestic authorities; and the third evidence has nothing
relating specifically to the complainant’s circumstances. As such, the new pieces of
evidence do not add any weight to his claims.
4.8
Regarding the statement from a Sri Lankan national who was detained and tortured
after being returned from Australia, the State party observes that given the Refugee Review
Tribunal’s assessment of the circumstances of the complainant’s case and the nonpersonalized nature of the information in question, this evidence does not add any weight to
the complainant’s claims. The State party concludes that none of the new evidence
submitted by the complainant indicates that there has been any material change to the
country situation since the complainant’s claims were last assessed.
Complainant’s comments on the State party’s observations
5.
In his submission of 26 May 2016, the complainant claims that the State party has
not assessed what would happen to him at Colombo Airport upon his arrival, taking into
account his illegal departure, nor did it assess the danger he would face when he returned to
his home area, despite the fact that much of his claims relate to events that took place in his
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