Decision on merits; Substantive issues: cruel, inhuman or degrading treatment or punishment non-refoulement public authorities - officials refugee status torture; Articles: 1 (1) 3 (1) 3 (2) 16 (1); Procedural issues: interim measures; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
S.V. (name withheld) v. Canada, Communication No.
49/1996,
U.N. Doc. CAT/C/26/D/49/1996 (2001).
Communication No. 49/1996
Submitted by: S.V. et al. (name withheld) [represented by counsel]
Alleged victim: The authors
State
party:
Canada
Date of communication: 15 May 1996
The Committee against Torture, established under article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
Meeting on 15 May 2001,
Having concluded its consideration of communication No. 49/1996,
submitted to the Committee against Torture under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
Having taken into account all information made available to it by the
author of the communication, his counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The authors of the communication are Mr. S.V., his wife and daughter,
citizens of Sri Lanka currently seeking refugee status in Canada. They
claim that forcible return to Sri Lanka would constitute a violation of
articles 3 and 16 of the Convention against Torture by Canada. They are
represented by counsel.
1.2 On 12 June 1996 the Committee forwarded the communication to the
State party for comments and requested it not to expel the authors while
their communication was under consideration by the Committee.
The facts as submitted by the authors
2.1 The author is a Tamil from the area of Jaffna in the north of Sri Lanka.
He and his wife have two children, an 8-year-old daughter and a 2-year-
old son who was born in Canada and is a Canadian citizen. The authors
claim that in the period from 1987 until their departure from Sri Lanka in
1992 they, and especially the author, suffered serious persecution from
the Indian Peacekeeping Force (IPKF), the Liberation Tigers of Tamil
Elam (LTTE), the Sri Lankan Army (SLA) and the Colombo police. The
author was arrested on several occasions and, in the course of at least two
of them, he was tortured by the army and the police.
2.2 The author was a member of the Tamil United Liberation Front
(TULF), which advocated the establishment of an autonomous Tamil
state in Sri Lanka by peaceful means. In October 1987, a military conflict
broke out between LTTE and IPKF. The author and his wife were forced
to vacate their home, in Thirunelvely, Jaffna, to escape the bombing.
When they returned to their home, they found that it had been occupied
by IPKF members. When the author asked them to leave, they refused
and accused him of being a member of LTTE.
2.3 In May 1988, the author was detained in a camp established on his
own property by the Eelam People's Revolutionary Liberation Front, a
militant Tamil group allied to IPKF. He was detained for 10 days, during
which he was repeatedly assaulted and questioned about possible
connections to LTTE.
2.4 In 1990, LTTE took control of the Tamil region. The author's property
was appropriated by LTTE and he himself was threatened at gunpoint
when he demanded that they vacate the property. He was then forced to
abandon his home permanently and the family moved to Kaithady, Jaffna.
2.5 In December 1990, while travelling from Colombo to Jaffna, the
author was detained by SLA in Vavuniya. He was questioned, accused of
being a member of LTTE and brutally assaulted. Three days later he was
beaten again in an attempt to extract a confession. His head was banged
repeatedly against a wall until he fell unconscious. The authors claim that,
as a result of this incident, the author suffered brain damage that has
gravely impaired his ability to speak. Following this incident, the author
went to Colombo seeking medical treatment.
2.6 In March 1991, after the assassination of the Sri Lankan Deputy
Minister of Defence, the police began a round-up of all Tamil males in
Colombo. The author, who had been staying with his cousin in Colombo,
was arrested by four armed police officers on 4 March 1991. He was
interrogated about his presence in Colombo and accused of being an
LTTE member. He was repeatedly assaulted by the police with hands and
rifle butts and stayed in detention for two days. He was released after the
intervention of a lawyer retained by his cousin. His cousin advised the
author that he could no longer reside with him as he feared further trouble
with the police. The author returned to Jaffna.
2.7 On 18 February 1992, LTTE attempted to force the author to join the
movement. When he refused, they ordered him to report to their office the
next day. Should he fail to report, he was told that he would be considered
an enemy of the Tamil people. The author understood this statement as a
threat to kill him and fled for Colombo that evening.
2.8 On 3 March 1992, the lodge in which he was staying in Colombo was
raided by the police and the author, along with other Tamil males, were
arrested. He was taken to Wellawatte police station and questioned about
his reasons for being in Colombo and his connections with LTTE. He was
released the following day on condition that he report weekly to the
police and not change his address in Colombo.
2.9 Henceforth, the author feared that he could at any time be arrested,
interrogated and tortured on suspicion that he was a member of LTTE. He
decided that his safety was no longer assured anywhere in Sri Lanka. He
left for Canada on 13 March 1992 and arrived the following May. (1) He
claimed Convention refugee status on the basis of persecution owing to
his race, his political opinions and his membership in a particular social
group.
2.10 The author's wife states that she was visited on several occasions in
Jaffna by LTTE members looking for her husband. An LTTE member
demanded that she pay 200,000 rupees as punishment for her husband's
disobedience, giving her one month in which to come up with the money.
As a result she fled with her daughter to Colombo. In Colombo she had to
register with the police and her identity card was confiscated. She was
accused of being an LTTE supporter. In August 1992, after a police
round-up of Tamils, she decided that there was no safe place for herself
and her daughter in Sri Lanka and she left for Canada in September 1992.
Upon her arrival she claimed refugee status for herself and her daughter.
2.11 The Immigration and Refugee Board, after a hearing on 4 March
1993, found that the authors could not be accorded refugee status. First,
the extortion activities of LTTE did not constitute persecution but rather
harassment not causing undue hardship. Secondly, the authors had in
Colombo an internal flight alternative; the Board found that there was no
serious possibility of the author being persecuted in Colombo and
therefore, it was not unreasonable that he could find refuge in that city.
2.12 By decision, dated 7 January 1994, the Federal Court Trial Division
dismissed the family's application for leave to apply for judicial review in
which they alleged errors of fact and of law in the Refugee Board's
decision.
2.13 On 28 January 1994, the authors applied for a review by Canadian
Immigration, under the Post-Determination Refugee Claimant in Canada
programme (PDRCC), of the decision not to grant the authors refugee
status. The purpose of PDRCC review is to identify individuals who,
although determined not to be Convention refugees, face an objectively
identifiable risk to life or inhumane treatment should they be returned to
their country of origin.
2.14 The authors' application for PDRCC review was rejected on 9
November 1995. It was the view of the PDRCC officer that, although
there were strong grounds for the authors' fearing to return to the north of
Sri Lanka, an internal flight alternative existed in Colombo. He noted in
particular that the assault by SLA which caused the author's medical
problems had occurred near Jaffna. The arrests by the Colombo police
were part of a pattern of general harassment of Tamils by the police
which he felt did not constitute an "objectively identifiable risk", given
that most detainees were released within three days though some had been
required to pay bribes to obtain their release. He also indicated that part of
the authors' extended family lived in Colombo and could facilitate their
successful settlement in the city. In addition, the medical report indicating
that the author suffered post-traumatic stress disorder which might be
aggravated if he were to return to Sri Lanka had only been made on the
basis of one visit to a doctor rather than in the context of ongoing
treatment and was not specific concerning the conditions that could
trigger recurrence of the trauma.
2.15 The authors made a further appeal on 13 May 1995 to the Minister of
Immigration based on the Humanitarian and Compassionate Grounds
procedure under section 114 (2) of the Immigration Act. On 9 December
1996 a negative decision was issued. An application for leave to apply for
judicial review against that decision was dismissed by the Federal Court
on 11 April 1997.
The complaint
3.1 The authors fear persecution and ill-treatment from the authorities in
Sri Lanka given their past experiences and their absence from the country
since 1992. They submit that in repatriating them Canada would violate
article 3 of the Convention against Torture.
3.2 The authors provide medical evidence that the mental and physical
injuries suffered by the author while in detention have had drastic long-
term effects. He has difficulties in speaking and moving his neck and
suffers symptoms of post-traumatic stress disorder (psychiatric medical
reports are provided). They submit that, given these afflictions, the author
would be particularly vulnerable to mistreatment and, further, would not
receive the medical care he needs in Sri Lanka.
3.3 The authors further explain that their daughter, Nitarsha, is physically
and mentally handicapped, suffering from cerebral palsy, right
hemiparesis and an active seizure disorder. She requires special care,
treatment and education. She would not receive those in Sri Lanka.
3.4 The authors submit that, given these medical conditions, the
deportation of the family would amount to inhuman and degrading
treatment on the part of the Canadian authorities in violation of article 16
of the Convention against Torture.
Observations by the State party on admissibility
4.1 By a note dated 9 June 1997 the State party contested the admissibility
of the communication. It indicated that the authors did not seek judicial
review of the decision of PDRCC and that this remedy might still be
available if time for filing were extended by the Court. Moreover, if the
authors were to succeed in an application for leave to apply for judicial
review, the decision of the Federal Court Trial Division on the judicial
review application could be further appealed to the Federal Court of
Appeal, should the judge of the Trial Division certify that the case raises a
serious question of general importance. Moreover, a decision of the
Federal Court of Appeal could be appealed, with leave, to the Supreme
Court of Canada.
4.2 On judicial review, the authors would be entitled to raise arguments
under the Canadian Charter of Rights and Freedoms. In this regard, it is
relevant to note that in the context of extradition the Supreme Court of
Canada has held that section 7 of the Charter is violated by returning
someone to a country in circumstances that would "shock the conscience
of Canadians".
Counsel's comments on admissibility
5.1 In his reply, dated 28 April 1998, counsel indicated that the authors
had applied for judicial review of the decision adopted by the
Immigration and Refugee Board. However, leave to be heard on this
question was refused by the Federal Court. There is no possibility of
appealing that decision. It is the final step in the refugee determination
procedure in which there is a judicial or quasi-judicial process that looks
into the substance of the matter; all subsequent judicial controls look only
into the procedures.
5.2 The post-determination review in November 1995 was negative. This
procedure has been criticised by refugees, lawyers and church groups
because it never results in a positive decision.
5.3 The only unresolved issue that is addressed by the State party is
whether the refusal of PDRCC should have occasioned a request for
judicial review by the Federal Court and whether this recourse can still be
resorted to. Counsel pointed out that judicial review of the PDRCC
procedure was not sought because of the lack of financial resources of the
applicants and the futility of it. The jurisprudence of the Federal Court
clearly establishes that the decision of the post-determination claims
officer is an entirely discretionary decision and that the Court is only
concerned with the procedural issues.
5.4 Instead of a request for judicial review, an appeal on humanitarian
grounds covering the same questions in law was made. The issue of the
post-traumatic stress was fully presented, as was the danger of return. The
torture was fully documented and the immigration officer judged the story
to be credible but refused to grant asylum because of the internal flight
alternative.
5.5 The refusal of the appeal on humanitarian grounds was challenged in
the Federal Court and leave was denied. According to the Court's constant
jurisprudence, decisions like the one under review are discretionary and,
therefore, the Court does not intervene on the substance of the cases, only
on whether the procedures have been fair. All legal arguments were
considered and disposed of by the Federal Court.
5.6 Counsel stated that it is objectively impossible to ask the Federal
Court to litigate again on exactly the same questions. The Court would
clearly consider that an abuse of the process.
5.7 The Canadian authorities concluded that the authors were at risk in the
Jaffna peninsula, but that Colombo could be a safe haven for them.
Counsel noted, however, that the author was severely mistreated by the
police in Colombo in March 1991, that he was arrested arbitrarily in
March 1992 and that there is a consistent pattern of arbitrary arrests,
detention, and sometimes disappearances and extra-judicial executions of
Tamils in Colombo.
5.8 The conclusion of the immigration officer in the humanitarian and
compassionate review procedure was that risks were involved. He based
his conclusion on the report of one of the doctors who examined the
author according to which the latter suffers from post-traumatic stress
disorder and his symptoms have increased as he is worried about being
returned to Sri Lanka. In the doctor's opinion, the author would have great
difficulty functioning in that country because of his neurological
difficulties. In spite of this, application was refused on the grounds of
"medical inadmissibility" that the authors had not shown that they had
established themselves economically in Canada. The family has been
living on social assistance since their arrival in Canada and, given their
circumstances, they might become a chronic welfare case.
5.9 In the medical report referred to by the immigration officer the doctor
also indicates that some Tamil refugees he had examined stated that they
were at greater risk in Sri Lanka if they had scars or signs of injury, as
these could be regarded by the authorities as an indication that their
injuries occurred while fighting with LTTE. The author's neurological
limitations could be regarded as having been caused in this manner. If he
were questioned by the authorities in Sri Lanka he would not be able to
express himself verbally and someone who was unaware of his
neurological limitations could regard this as being obstructive or
antagonistic.
5.10 Counsel argued that neither the Government of Canada nor the
Office of the United Nations High Commissioner for Refugees (UNHCR)
evaluated the objective risk for the individuals in this particular case but
only considered the question of deportations to Sri Lanka in general.
5.11 Counsel contended that returning a person who suffers from serious
physical and mental damage as a result of human rights abuses to the
country where he was subjected to those abuses constitutes inhuman
treatment. The lack of medical care or proper psychiatric assistance in Sri
Lanka could per se constitute a violation of article 16 of the Convention.
Counsel, however, raised this as a circumstance aggravating the inhuman
treatment involved in the deportation.
Committee's decision on admissibility
6.1 At its twentieth session, the Committee considered the admissibility of
the communication. The Committee was of the opinion that once the
Humanitarian and Compassionate Grounds procedure, including a leave
application addressed to the Federal Court, was completed, all available
domestic remedies had been exhausted. Accordingly, article 22,
paragraph 5 (b), did not prevent it from considering the communication.
The Committee considered that there was no other obstacle to the
admissibility of the communication. It therefore decided that the
communication was admissible.
Observations of the State party on the merits of the communication
7.1 According to the State party, the facts as presented by the authors
were examined by a competent and independent domestic tribunal
following a fair process, in accordance with Canada's refugee
determination procedure. The State party also notes that the authors were
represented by counsel during the course of the proceedings,
interpretation was provided and the author's viva voce testimony was
elicited.
7.2 It was the view of the Refugee Board that the central issue with
respect to the author's situation is that he was released by the police. This
clearly indicates that the author was not considered an LTTE member or
sympathizer by the very authorities he fears. The Board stated in its
reasons that it considered the authors' allegations concerning the beatings
received at the hands of the Sri Lankan army and the medical reports he
filed with the Board. However, the Board noted that the definition of
"Convention refugee" is forward-looking and past experiences, though
relevant, are not determinative in the assessment. It states that this is also
true of article 3 of the Convention against Torture.
7.3 Regarding the author's wife and child, the Board determined that they
were not Convention refugees as they did not have problems when they
were in Colombo. Furthermore, as their claims were joined with and
dependent upon the author's claim, the Board determined that they were
not Convention refugees.
7.4 With respect to the authors' application to PDRCC, the State party
explains that, in most cases, the Convention refugee definition will
overlap with article 3 of the Convention against Torture. In circumstances
where there is no overlap, officials conducting the post-determination
review must give consideration to article 3 of the Convention. In
accordance with the criteria for these reviews, the post-determination
officer reviewed the authors' written submissions prepared on their behalf
by their lawyer, the documentation they attached and documentation on
the situation in Sri Lanka. The submissions included evidence not
produced at the time of the hearing before the Refugee Board, notably a
medical report and a 1994 report by Amnesty International. (2)
7.5 Regarding the humanitarian and compassionate review of the case
under section 114 (2) of the Immigration Act, the State party contends
that the reviewing officer took into account all the submissions of the
applicants and a wide range of circumstances, including the risk of unduly
harsh or inhumane treatment in the country of return, current conditions
in the country and new developments in Sri Lanka since the hearing
before the Refugee Board and the PDRCC review. The immigration
officer indicated that "risks were involved" (3) but did not confirm that
torture was one of them. The risk assessment is not limited to the risk of
torture.(4)
7.6 According to the State party, the above-mentioned national
proceedings demonstrate no manifest error or unreasonableness and were
not tainted by abuses of process, bad faith, manifest bias or serious
irregularities. It also states that it is not for the Committee to evaluate the
facts and evidence of a particular case.
7.7 In the State party's view, the communication reveals that the authors
of the communication left their country because they feared LTTE or
because they feared being caught between LTTE and the governmental
authorities. Such fear does not suffice to substantiate a communication
under the Convention. The authors also state in their submission - and this
is confirmed in the medical report - that they feared torture at the hands of
LTTE if they are returned to Sri Lanka. The author himself claimed that it
was the order to join LTTE that prompted him to leave for Colombo in
1992. Consequently, the State party argues that, in the north of the
country, the authors do not fear the Sri Lankan authorities but LTTE.
7.8 The State party submits that acts committed by LTTE do not fall
under the competence of the Committee since the definition of "torture"
in the Convention refers expressly to acts committed "by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity". Acts committed by LTTE
cannot be attributed to the State and therefore are not covered by the
Convention.
7.9 As to the alleged risk of torture at the hands of the State, the State
party submits that the authors of the communication have not established
substantial grounds to believe that, if the authors were deported to Sri
Lanka, there is a personal, present or foreseeable risk of torture. It states
that the authorities are not interested in the authors and makes the
following points in this regard:
Although the author claimed, before the Refugee Board, to be an ardent
supporter of TULF, he never indicated that he was a member of this
movement or had been involved in political activities. In any event, TULF
is now represented in Parliament and supports peace initiatives taken by
the Government;
In his refugee application, the author claimed that he chose Canada
because he was unable to go anywhere else. However, his Personal
History Form, completed by him on his arrival into Canada, shows that he
travelled to many different countries and for long periods, returning
voluntarily to his country each time, even after the incidents in which he
alleges that he had problems with the authorities. In particular, almost one
year after his alleged torture by the army in December 1990, the author
left his country for Singapore and returned voluntarily to Sri Lanka;
The author travelled many times to Colombo and had no problems with
the authorities except in March 1991 and March 1992. This establishes
that the author is not suspected of complicity with LTTE;
While the author claimed that he was tortured by the authorities when
arrested in December 1990, March 1991 and March 1992 he has not
provided any evidence to indicate that any pain suffered in March 1991
amounted to torture as defined by the Convention. Also, when last
arrested in 1992, the event which is alleged to have prompted him to
leave the country, the author was not beaten and was released the next
day with the only obligation being to report to the authorities once a
week;
As to the author's physical condition, his wife stated that, apart from a
longer period of questioning because of his speech difficulties, her
husband had no other problem with the police when he was in Colombo.
The author himself stated that the police were able to understand him
when he spoke with them;
As to the argument that the author would face torture because of his
speech difficulties, the State party argues that this is mere conjecture and
is based on the medical report which states that "(s)ome Tamil refugees,
whom I have examined, have indicated that they believe that they are at
risk in Sri Lanka if they have scars or signs of injury as these could be
regarded by the authorities as an indication that their injuries had occurred
while fighting with the LTTE". Such beliefs cannot constitute substantial
grounds required by article 3 of the Convention;
The author's wife has not herself been arrested by the authorities and she
had no problem with the police in Sri Lanka. Therefore, there is a total
lack of evidence that she was accused or suspected of being an LTTE
supporter;
Contrary to the author's wife's claim, there is no evidence that her identity
card was taken away by the Sri Lanka authorities. In any event, she was
not arrested, detained, accused or asked to make any subsequent reports to
the police;
In 1991, the author, and in 1992, his wife, legally obtained passports in
Sri Lanka;
The authors have not claimed that persons in their immediate circle,
notably family members, were arrested or tortured.
7.10 The State party refers to decisions of the Committee where the
authors have failed to show that the danger is personal and
present. (5) The State party also refers to a case decided by the European
Court of Human Rights involving the removal of Sri Lankans. In that case
the allegation of a violation of article 3 of the European Convention on
Human Rights was dismissed as the plaintiffs did not establish that their
personal position was any worse than that of other members of the Tamil
community who were returning to their country. The mere possibility of
ill-treatment was not in itself sufficient to foresee that they would be
subjected to ill-treatment following their return. (6)
7.11 The State party submits that the communication rests mainly on the
general situation of human rights in Sri Lanka. The authors do not link
that general situation to their personal situation. As to the general
situation in Sri Lanka, the report of the Working Group on Enforced or
Involuntary Disappearances (1998) indicates that persons most often
reported detained and missing were young Tamil men accused or
suspected of belonging to, collaborating with, aiding or sympathizing
with LTTE. The State party argues that the authors do not fall into this
category.
7.12 Furthermore, it states that the information provided by UNHCR
indicates that torture and other forms of mistreatment are not practised by
the police and security authorities in Colombo. The United States
Department of State Country Report for 1998 (dated February 1999)
indicates that there were no reports of disappearances in Colombo and
Jaffna. In March 1997, UNHCR reported that rejected asylum-seekers
who arrived with national travel documents should have no problems
when arriving at Colombo airport.
7.13 Moreover, the State party argues that in its assessment of the
communication, the Committee should take into consideration the
different measures taken by the Sri Lankan authorities to investigate and
prevent acts of torture, as well as remedies available to the authors. In this
context, the State party notes that, inter alia, all arrests and detentions
must be reported to the Human Rights Commission (established in 1997)
within 48 hours, the reports of three presidential commissions of inquiry
into past disappearances have been made public, investigations into 485
of the 3,861 cases of alleged human rights violations have been
completed and 150 alleged perpetrators charged in the High Court, and a
24-hour service to deal with public complaints of instances of harassment
by elements in the security forces has been established by the
Government.
7.14 With respect to the alleged violation of article 16 of the Convention,
the State party argues that this article obliges States parties to apply the
obligations contained in articles 10 to 13 to acts of cruel, inhuman or
degrading treatment or punishment. As article 16 does not mention article
3, it does not create an obligation not to remove someone from a State in
the circumstances described in that article.. (7)
7.15 The State party is of the view that should article 16 of the
Convention be found to apply where it is alleged that removal per se
constitutes cruel, inhuman or degrading treatment or punishment, it
should do so only in very exceptional circumstances. It is submitted that
the aggravation of the author's state of health possibly caused by his
deportation would not amount to the type of cruel, inhuman or degrading
treatment envisaged by article 16 of the Convention and attributable to the
State party; reference is made in this regard to the Committee's decision
in G.R.B. v. Sweden. Furthermore, article 16 of the Convention obliges
States to prevent the proscribed treatment; it does not create a positive
duty to provide medical care should the authors allegedly not receive
comparable medical care in their home country. Further, it is submitted
that there is no evidence that the required medical care in Sri Lanka is
inadequate. Finally, article 16, paragraph 2, indicates that the provisions
of the Convention are without prejudice to the provisions of national law
which relate to expulsion.
Counsel's comments on the merits
8.1 Counsel contests the State party's assertion that this case was
examined by "a competent and independent domestic tribunal". He claims
that the Immigration and Refugee Board failed to appreciate both the facts
of the case and the applicable law.
8.2 Counsel states that the most recent evidence available from Sri Lanka
shows a situation of terrible human rights abuses in line with those
described in article 3, paragraph 2, of the Convention against Torture.
There have been several suicide bomb attacks in Colombo and other areas
of the country. There has also been a major LTTE offensive in the north.
There are reports of large-scale round-ups of Tamils in the centre and the
capital of the country, as well as a serious resurgence of forced
disappearances. (8)
8.3 Counsel refers to the Committee's general comment on article 3 of the
Convention against Torture and argues that article 3 applies to the
author's case as follows.
(a) There is a situation in Sri Lanka of a "consistent pattern of gross,
flagrant or mass violations of human rights". The existence of torture with
impunity, on a massive and systematic scale, is clear from any reading of
the situation;
(b) The author has been mistreated in the past by agents of the Sri Lankan
State. He has brain damage because of severe mistreatment by soldiers of
the Sri Lankan army. He has been detained on more than one occasion in
Colombo and mistreated by the police. This happened shortly before he
left Colombo;
(c) There is independent medical and psychiatric evidence from doctors
and psychiatrists associated with the Canadian Centre for Victims of
Torture that establishes clearly that he is a torture victim. The torture has
had a long-lasting effect on the author and his family;
(d) There is no substantive change in the situation in Sri Lanka since the
author left the country. The situation at the time of counsel's submission
is said to have been very serious and dangerous. A high level of
repression and the legal arsenal that permits almost total impunity are
firmly in place;
(e) The author was a supporter of the main Tamil party, TULF. He is from
the north and he has suffered torture in the past. His situation as a torture
victim in the past puts him greatly at risk today;
(f) The author is highly credible, with strong support from serious
organizations in Canada. The original decision did not find against him on
the issue of credibility;
(g) There is nothing incoherent or implausible about what the author says.
His personal security and his life are at risk in Sri Lanka today.
8.4 Counsel also contests the assertion that the authors' main fear is of the
Tamil Tigers. Counsel contends that the jurisprudence cited by the
Canadian authorities appears to relate to cases that were not substantiated
or where the author in question was not previously subjected to torture or
directly targeted.
8.5 Counsel states that it is untrue to say that there is no longer torture in
Colombo. All of the international human rights reports that are available
state the contrary. Even the Federal Court of Canada recognized, in its
decision granting the stay, that there is a risk of irreparable harm for the
author if he were sent back, as did the immigration agent examining his
case.
Issues and proceedings before the Committee
9.1 The Committee has considered the communication in the light of all
the information made available to it by the parties, in accordance with
article 22, paragraph 4, of the Convention.
9.2 The issue before the Committee is whether or not the forced return of
the authors to Sri Lanka would violate the obligation of Canada under
article 3 of the Convention not to expel a person to another State where
there are substantial grounds for believing that he would be in danger of
being subjected to torture.
9.3 In reaching this decision, the Committee must take into account all
relevant considerations, pursuant to article 3, paragraph 2, of the
Convention, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. The aim of the determination,
however, is to establish whether the individuals concerned would be
personally at risk of being subjected to torture in the country to which he
or she would return. It follows that the existence of a consistent pattern of
gross, flagrant or mass violations of human rights in a country does not as
such constitute a sufficient ground for determining that a particular person
would be in danger of being subjected to torture upon his return to that
country; additional grounds must exist to show that the individual
concerned would be personally at risk. Similarly, the absence of a
consistent pattern of gross violations of human rights does not mean that a
person cannot be considered to be in danger of being subjected to torture
in his or her specific circumstances.
9.4 The Committee recalls its general comment on the implementation of
article 3, which reads:
"Bearing in mind that the State party and the Committee are obliged to
assess whether there are substantial grounds for believing that the author
would be in danger of being subjected to torture were he/she to be
expelled, returned or extradited, the risk of torture must be assessed on
grounds that go beyond mere theory or suspicion. However, the risk does
not have to meet the test of being highly probable" (A/53/44, annex IX,
para. 6).
9.5 The Committee recalls that the State party's obligation to refrain from
forcibly returning a person to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected
to torture is directly linked to the definition of torture as found in article 1
of the Convention. For the purposes of the Convention, according to
article 1, "the term 'torture' means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity". The Committee considers that
the issue of whether the State party has an obligation to refrain from
expelling a person who might risk pain or suffering inflicted by a non-
governmental entity, without the consent or acquiescence of the
Government, falls outside the scope of article 3 of the Convention.
Consequently, the issue, on which the authors base part of their claim that
they would suffer torture by LTTE or other non-governmental entities on
return to Sri Lanka, cannot be considered by the Committee.
9.6 With respect to the possibility of the author suffering torture at the
hands of the State on return to Sri Lanka, the Committee notes the
author's allegations that he was tortured by the Sri Lankan army in
December 1990 and that this treatment, which left him disabled,
amounted to torture in terms of article 3 of the Convention. It also notes
the allegations that he was maltreated by the police in Colombo in 1991.
However, the Committee also notes the State party's contention,
unchallenged by the author, that he left Sri Lanka regularly and always
returned, even after the incident in December 1990. The Committee notes
that with respect to the incident in March 1992, which according to the
author was the reason for his departure, he was not maltreated and was
released by the authorities. Furthermore, the author has not indicated that
since that period he has been sought by the authorities. In fact, the author
has not alleged to have been engaged in political or other activity within
or outside the State, or alleged any other circumstance which would
appear to make him particularly vulnerable to the risk of being placed in
danger of torture. For the above-mentioned reasons, the Committee finds
that the author has not provided substantial grounds for believing that he
would be in danger of being tortured were he to be returned to Sri Lanka
and that such danger is personal and present.
9.7 Similarly, the author's wife and their daughter have never been
arrested or subjected to torture. The obligation to register at the police
station at Colombo and the allegation, challenged by the State party, that
the police took her identity card are not substantial grounds for believing
that they would be in danger of being subjected to torture were they to be
returned to Sri Lanka and that such danger is personal and present.
9.8 The Committee recalls that, for the purposes of article 3 of the
Convention, the individual concerned must face a foreseeable, real and
personal risk of being tortured in the country to which he or she is
returned. In light of the foregoing, the Committee deems that such a risk
has not been established by the authors. Moreover, the Committee
observes that article 3 applies only to situations of torture as defined in
article 1 of the Convention.
9.9 With regard to the authors' allegation that the decision to expel them
would in itself constitute an act of cruel, inhuman or degrading treatment
or punishment in contravention of article 16 of the Convention, the
Committee notes that the authors have not submitted sufficient evidence
in substantiation of this claim.
10. The Committee against Torture, acting under article 22, paragraph 7,
of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, concludes that the authors' removal
to Sri Lanka by the State party would not constitute a breach of article 3
or article 16 of the Convention.
Notes
1. According to the State party, the author went first to Malaysia, where
he stayed until 16 May 1992, then to Singapore on 16 May 1992 and
finally arrived in Canada on 19 May 1992. The author did not claim
protection in either of the first two countries.
2. The State party provides an explanation of this procedure in its PDRCC
Guidelines.
3. The State party does not say what the specific risks were in relation to
this case.
4. The State party has provided the text "Immigration Applications in
Canada made on Humanitarian or Compassionate (H&C) Grounds",
which describes this procedure in detail.
5. X
v.
The
Netherlands (036/1995), J.U.A.
v.
Switzerland (100/1997), H.D. v. Switzerland (112/1998), S.M.R. and
M.M.R. v. Switzerland (103/1998).
6. The State party does not provide the name or the registration number of
this case.
7. Travaux préparatoires of the Convention
8. Reports of Amnesty International and other organizations are provided
by counsel in support of this argument.