CAT/C/68/D/718/2015
in the Seven Four refugee camp in the city of Vaviniya, Sri Lanka, with his parents and his
older and younger brothers. The complainant asserts that his older brother worked from 1998
to 2008 as a mechanic at a workshop near Killinochi owned by a member of the Liberation
Tigers of Tamil Eelam (Tamil Tigers). Shortly after the family arrived at the refugee camp,
the complainant and his older brother, together with other young men, were questioned by
officers of the Sri Lankan army about their possible involvement with the Tamil Tigers. They
underwent body searches by the Army aimed at detecting injuries as evidence.
2.2
In August 2009, the army officers returned to the refugee camp and arrested the
complainant’s older brother. The complainant submits that his brother was considered to be
affiliated with the Tamil Tigers because of his former employment. He was taken from the
refugee camp to an unspecified location and detained by the authorities for 14 months, during
which time he was subjected to torture.
2.3
Since his parents feared that the complainant might also be taken by the army, they
paid a bribe to the Karuna paramilitary group to secure his departure from the refugee camp
and send him overseas. With the assistance of the Karuna paramilitary group, he obtained a
passport and a tourist visa for Malaysia and managed to leave the refugee camp. On 30
October 2009, the complainant fled Sri Lanka for Thailand. He stayed in Bangkok for a few
days before arriving in Malaysia, where he lived until March 2011, and from there he
travelled on to Indonesia, the final transit country before reaching Australia.
2.4
On 1 December 2011, the complainant arrived at Christmas Island in Australia by
boat. On 4 February 2012, he lodged an application for a protection visa, which was refused
by the Department of Immigration and Citizenship on 29 February 2012. His case was
subsequently examined under an independent protection assessment. On 11 October 2012,
he was informed by the Department of Immigration and Citizenship that he had been
considered not to meet the criteria for a protection visa. The officer concerned accepted as
fact the complainant’s accounts of his brother’s employment in a workshop associated with
the Tamil Tigers. It was also accepted that in August 2009 the complainant’s brother had
been arrested and detained by the authorities for 14 months, because of his former
employment. It was also found plausible that the complainant had fled Sri Lanka because of
his subjective fear that he would be persecuted in his country of origin by reason of an
imputed political opinion that he was associated with the Tamil Tigers. His fear arose from
his brother’s circumstances, his Tamil ethnicity and the fact that he originates from the
Northern Province of Sri Lanka. However, the officer considered that had the authorities had
any real concerns about him at the time of his older brother’s arrest, or soon after, they would
have arrested the author as well and he would not have been able to obtain a passport and
depart from Sri Lanka without incident. Accordingly, the officer found the alleged incidents
to be insufficient to bring the complainant to the attention of the authorities. Having also
considered the available country information, the officer concluded that the complainant
would not be targeted because of his Tamil ethnicity or as a suspected supporter of the Tamil
Tigers. Likewise, there was no reason to believe that the complainant would be at risk of
torture as a failed asylum seeker upon his return.
2.5
The complainant sought a judicial review of the decision of 11 October 2012 before
the Federal Circuit Court of Australia. On 13 December 2013, the Federal Circuit Court
dismissed the application for judicial review.
2.6
As the complainant was not aware of the 21-day deadline to appeal the decision of the
Federal Circuit Court to the Federal Court of Australia, he chose an alternative legal avenue
and made a request to the Minister for Immigration and Border Protection to exercise his
power to grant a protection visa, which was declined on 19 June 2014.
2.7
Subsequently, the complainant decided to apply for an extension of time to appeal the
decision of the Federal Circuit Court, which was partially granted. On 22 October 2015, the
complainant’s appeal to the Federal Court of Australia was dismissed. He then sought legal
advice from his counsel on the likelihood of the High Court of Australia granting him special
leave to appeal and was advised that the prospects were poor. The complainant therefore
claims that he has exhausted all available domestic remedies.
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