Decision; Subjects: SWITZERLAND, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.22-12042(E)
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 832/2017*, **
Communication submitted by:
K.S. (represented by counsel, Gabriel Püntener)
Alleged victim:
The complainant
State party:
Switzerland
Date of complaint:
23 June 2017 (initial submission)
Document references:
Decision taken pursuant to rule 115 of the
Committee’s rules of procedure, transmitted to the
State party on 3 July 2017 (not issued in document
form)
Date of adoption of decision:
18 November 2021
Subject matter:
Deportation to India
Procedural issue:
None
Substantive issue:
Risk of chain refoulement and torture or other
cruel, inhuman or degrading treatment in the event
of removal to India (non-refoulement)
Article of the Convention:
3
1.1
The complainant is K.S., a Sri Lankan national born in 1977. He claims that by
removing him to India, the State party would violate his rights under article 3 of the
Convention. The State party has made the declaration pursuant to article 22 (1) of the
Convention, effective from 1 January 1987. The complainant is represented by counsel.
1.2
On 3 July 2017, the Committee, acting through its Rapporteur on new complaints and
interim measures, requested the State party to refrain from removing the complainant to India
while his complaint was being considered by the Committee. On 7 July 2017, the State party
reported that the complainant’s removal had been suspended in accordance with the
Committee’s request.
Facts as submitted by the complainant
2.1
The complainant, of Tamil ethnicity, is from Jaffna District, Sri Lanka. In 2006, he
was recruited and registered by the Liberation Tigers of Tamil Eelam (LTTE), with whom
he stayed from 2006 to 2008. He completed military training and later was trained in how to
* Adopted by the Committee at its seventy-second session (8 November–3 December 2021).
** The following members of the Committee participated in the examination of the communication:
Essadia Belmir, Claude Heller, Erdogan Iscan, Liu Huawen, Ilvija Pūce, Ana Racu, Diego Rodríguez-
Pinzón, Sébastien Touzé, Bakhtiyar Tuzmukhamedov and Peter Vedel Kessing.
United Nations
CAT/C/72/D/832/2017
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
2 August 2022
Original: English
CAT/C/72/D/832/2017
2
conduct inspections of people and goods at LTTE checkpoints. At a later stage, he drove
trucks and transported goods for LTTE in Kilinochci.
2.2
Following an intensification of the fighting between LTTE and government forces,
the complainant fled Kilinochci and returned home in 2008. On 20 April 2009, he surrendered
to the Sri Lanka Army. He was immediately arrested, identified as a member of LTTE and
transferred to a so-called rehabilitation camp. There, representatives of the International
Committee of the Red Cross regularly visited him.
2.3
On 22 May 2010, the complainant was released from the rehabilitation camp but had
to report to the authorities on a weekly basis. In July 2011, he was arrested by the terrorism
investigation division of the Sri Lanka Police and transferred to Colombo. He was detained
for three months in Colombo, during which time he was mistreated and interrogated by
members of the terrorism investigation division. They accused him of possessing information
about hidden weapons belonging to LTTE and concerning LTTE members. The complainant
was released in October 2011 but again had to report to the authorities on a weekly basis. He
was regularly monitored and threatened by members of the terrorism investigation division,
including through telephone calls. Due to the persistent accusations that he supported LTTE
and the ongoing risk of an arrest, the complainant, his wife and son fled to India in 2012.
2.4
In India, the family lived in Chennai, in the State of Tamil Nadu. Upon their
registration, the Indian authorities were informed of the complainant’s past as an LTTE
member and confiscated his passport. From 2014 until July 2015, the complainant worked as
a driver for a well-known Tamil politician of the Naam Tamilar Katchi party. Due to repeated
threats from Q Branch, the counter-terrorism unit of the Tamil Nadu Police Criminal
Investigation Department, and by members of the national Intelligence Bureau, the
complainant resigned in July 2015. Nevertheless, the Indian authorities still considered him
to be a threat. They closely monitored and harassed him.
2.5
Out of fear of being arrested by the Indian authorities and being deported to Sri Lanka,
the complainant left India and fled to Switzerland in April 2017. He arrived by plane and
submitted his request for asylum at Zurich Airport on 22 April 2017. His request to enter
Switzerland was denied on the same day. At the time of his application, the complainant was
staying in the transit area of Zurich Airport.
2.6
On 25 April 2017 and 9 May 2017, the State Secretariat for Migration interviewed the
complainant. On 11 May 2017, the State Secretariat for Migration dismissed the
complainant’s application for asylum on the basis that he had stayed in India for five years –
between his initial flight from Sri Lanka in 2012 and his request for asylum in Switzerland
in 2017. The State Secretariat for Migration decided not to consider the asylum application
on the merits but to send the complainant back to India as a safe third country. The authorities
argued that the complainant could file his request for asylum in India, that he would not be
in danger of being returned to Sri Lanka from India (chain refoulement) and that he would
be at no risk of being tortured or being subjected to inhuman treatment in India.
2.7
On 18 May 2017, the complainant appealed against the decision of the State
Secretariat for Migration. On 8 June 2017, the Federal Administrative Court, which is the
last instance for asylum cases in Switzerland, rejected the appeal.
2.8
Nevertheless, on 14 June 2017, the complainant filed a request for reconsideration of
the Federal Administrative Court’s decision, which was still pending at the time of the
submission of his complaint to the Committee. As the request for reconsideration is an
extraordinary legal remedy with no suspensive effect, the Federal Administrative Court
decided that no decision would be taken to suspend the deportation of the complainant during
the procedure. The pending remedy thus could not be considered as effective. Accordingly,
the complainant claims to have exhausted all available domestic remedies, submitting that
his complaint has not been or is not being examined under another procedure of international
investigation or settlement.1
1 The present communication was originally scheduled for consideration during the Committee’s sixty-
ninth session, but its consideration was suspended due to the reopening of domestic proceedings.
Subsequently, the complainant informed the Committee that the Federal Administrative Court had
CAT/C/72/D/832/2017
3
Complaint
3.1
The complainant fears he will face a foreseeable, real and personal risk of being
tortured by the terrorism investigation division of the Sri Lanka Police if he is deported to Sri
Lanka. He claims that his background as a former member of LTTE is undisputed by the
Swiss authorities. It is also undisputed that, as a former member of the LTTE who underwent
the rehabilitation process but illegally left Sri Lanka while he was still under the obligation
of regularly reporting to the Sri Lankan authorities, he would be at risk of a treatment contrary
to the prohibition of torture in Sri Lanka.
3.2
The complainant asserts that his claims raise two issues: whether he is at risk of being
deported from India to Sri Lanka, if he were returned to India by the Swiss authorities (chain
refoulement); and if he can obtain refugee status, as defined in the Convention relating to the
Status of Refugees (1951 Convention), in India. He submits that India has neither ratified the
1951 Convention nor its 1967 Protocol relating to the Status of Refugees, and cannot be
considered as a safe third country where he would be guaranteed the right to request asylum.
He claims that there are no procedures in place in India to assess if a person is in danger of
being subjected to torture and inhuman treatment or punishment in his country of origin.
3.3
The complainant claims to have provided evidence to the Swiss authorities that India
does regularly deport asylum seekers to their countries of origin. There are also reports in the
media of recurring threats by Indian political parties, including the ruling Hindu nationalist
Bharatiya Janata Party, to deport thousands of Rohingya refugees and Bangladeshi migrants
back to their countries of origin. He further claims that Tamils have frequently been deported
from India to Sri Lanka. Even though there are reports of court orders restraining the Indian
immigration authorities from deporting Tamils to Sri Lanka, the existence of these court
proceedings attests to the fact that the Indian authorities do regularly attempt to do so.
3.4
The complainant claims that by forcibly returning him to India, where he would face
an acute danger of chain refoulement to Sri Lanka, Switzerland would violate its obligations
under article 3 of the Convention. The complainant claims that even if not deported to Sri
Lanka, he would not enjoy the status of a refugee as defined in the 1951 Convention and its
1967 Protocol, but would live as a marginalized and illegal immigrant with no legal rights
and no proper status. He also fears being arrested and put in a special camp for Sri Lankan
Tamils under the provisions of the Foreigners Act, 1946, without any means of recourse or
legal protection. He provides evidence that such orders are frequently issued by the Public
Department of the State of Tamil Nadu. Hence, India cannot be considered as a safe third
country of asylum.
State party’s observations on the merits
4.1
The State party provided its observations on the merits by note verbal of 29 December
2017. It observes that the situation of human rights in India has significantly improved, even
though reports suggest that numerous acts of torture still occur in detention there. However,
the State party asserts that the existence of a consistent pattern of gross, flagrant or mass
violations of human rights does not, in itself, constitute sufficient grounds for determining
that a particular person will be subjected to torture upon return to his or her country of origin.
The Committee must establish whether the complainant is personally at risk of being
subjected to torture in the country to which he or she is to be returned.2 Additional grounds
must be adduced in order for the risk of torture to qualify as foreseeable, real and personal
for the purposes of article 3 (1) of the Convention.3 The risk of torture must be assessed on
grounds that go beyond mere theory or suspicion.4
4.2
The State party observes that the human rights situation in India has improved and
stabilized in recent years, despite the fact that the Committee noted that numerous incidents
of torture in police custody continue to take place, and that there is widespread impunity for
rejected his appeal through a decision dated 22 October 2021, and that all available domestic
remedies had been exhausted.
2 K.N. v. Switzerland (CAT/C/20/D/94/1997), para. 10.2.
3 Ibid., para. 10.5; and J.U.A. v. Switzerland (CAT/C/21/D/100/1997), paras. 6.3 and 6.5.
4 Committee against Torture, general comment No. 1 (1997), para. 6.
CAT/C/72/D/832/2017
4
perpetrators.5 However, the general human rights situation in India is not in itself sufficient
to determine whether the complainant’s deportation is compatible with article 3 of the
Convention. In that regard, the State party submits that the complainant failed to provide any
evidence to conclude that he would be at personal risk of being subjected to torture in India.
4.3
Moreover, the State party specifies that the Swiss authorities decision to deport the
complainant is based on the possibility for him to return to India, where he lived for five
years before travelling to Switzerland, and does not consider the question of his deportation
to Sri Lanka. According to domestic law, the State Secretariat for Migration does not consider
an asylum application on the merits if the complainant can return to a safe third country where
he previously lived. In accordance with a decision of the Swiss Federal Court of 14 December
2007,6 India is considered as a safe third country. In its deportation decision in the present
case, the State Secretariat for Migration therefore stressed that Switzerland considers India
to be a country where as a general rule no asylum-relevant persecution occurs.
4.4
The State party affirms that, according to the conclusions of the fact-finding mission
conducted by the State Secretariat for Migration to Tamil Nadu in September 2017,
approximately 36,000 Sri Lankan refugees live in this state outside of refugee camps and are
considered as having a comfortable living.7 The State party further notes that every Sri
Lankan refugee is monitored in India. Refugees living in camps have restricted freedom of
movement and are not allowed to leave the camp during certain periods, while refugees living
outside of the camps have regular contact with Q Branch of the Tamil Nadu Police, either by
phone, in-person visits or an informal obligation to report. A lawyer from Chennai who
specializes in the defence of Sri Lankan refugees confirmed to investigators of the State
Secretariat for Migration that there has been no forced return to Sri Lanka from India in recent
years and that the tribunals of Tamil Nadu have rejected all requests for the extradition of Sri
Lankan nationals of Tamil ethnicity.
4.5
Concerning the allegations that the complainant was subjected to treatment prohibited
under the Convention before his departure from Sri Lanka, the State party emphasizes, again,
that the decision of the Swiss authorities is based on the possibility of the author returning to
India. For the same reason, the profile of the complainant as an alleged former member of
LTTE is not a decisive factor in the consideration of his protection claim.
4.6
The State party notes that the complainant alleges to have been constantly harassed
and intimidated by the Indian authorities while living in India. The State party submits that
the problems allegedly faced by the complainant in India in connection to his profile as a
former LTTE member and his perceived closeness with a well-known Tamil politician do
not constitute acts of torture within the meaning of the Convention. The State party further
notes that the complainant ceased working as a driver for this politician in July 2015, but that
he remained in India until 2017. The causal link between the alleged harassment by the Indian
secret services as a result of this activity and his departure from India is therefore missing. It
also appears contradictory that the Government of India would grant protection to the
complainant and his family by registering them as refugees and providing them with an
apartment, while illegally persecuting him. In addition, the complainant failed to explain the
interest the Indian authorities could have in him considering he only performed ancillary
tasks for LTTE, and how they would have been informed of his activities in Sri Lanka. With
regard to the allegations that the author was harassed by Q Branch of the Tamil Nadu Police
and that his passport was confiscated, the State party recalls that according to the findings of
the State Secretariat for Migration, following its mission in 2017, all Sri Lankan refugees are
subject to the same surveillance. The complainant is, therefore, not personally targeted.
4.7
The State party observes that the complainant was legally registered in India and lived
in that country from 2012 to 2017. His second child was born in an Indian hospital and
received corresponding identification papers. Furthermore, the Government allocated the
complainant an apartment, where his wife and children still reside. In view of these elements,
5 P.S.B. and T.K. v. Canada (CAT/C/55/D/505/2012), para. 8.3.
6 The State party does not provide any reference for this decision.
7 Based on information provided to the Committee by the Commissionerate of Rehabilitation and
Welfare of Non-Resident Tamils on 31 July 2017.
CAT/C/72/D/832/2017
5
the State party supports the findings of the asylum authorities that the complainant has the
status of a legal resident in India.
4.8
The State party notes that, even though India has not ratified the 1951 Convention or
the 1967 Protocol relating to the Status of Refugees and that there are no procedures in place
to assess the claims of asylum seekers, the rights of refugees and asylum-seekers are
protected in the Constitution. In 1996, the Indian Supreme Court issued a non-refoulement
precept that is similar to that in the 1951 Convention. The complainant admitted to the Swiss
authorities that instances of the return of foreign nationals by the Indian authorities are scarce.
Moreover, the complainant has not engaged in activities in India that would have given him
an exposed profile, his stay was regularized, an apartment was made available to him by the
Government, and he lived in India continuously for five years. The examples of persons sent
back from India to Sri Lanka cited by the complainant seem to concern different situations
and are not relevant to the complainant’s claim. Moreover, the State party observes that, to
the extent that he would need protection, the complainant could apply to the competent Indian
authorities. In India, he would benefit from work experience and State-provided
accommodation. In accordance with the findings of the State Secretariat for Migration
following its mission, the fact that the complainant resided outside a refugee camp in India
confirms that he had financial means. Even without accommodation or revenue, the
complainant could always move to a refugee camp. In light of the above, the State party is of
the view that there is no indication that the complainant would be exposed to a risk of chain
deportation to Sri Lanka if he were to return to India.
4.9
In view of the foregoing, the State party submits that the complainant has not
established a credible claim that he would be exposed to a foreseeable, personal and real risk
of being subjected to torture, within the meaning of article 3 of the Convention, if he were
returned to India.
Complainant’s comments on the State party’s observations
5.1
In his comments dated 10 February 2019, the complainant indicates that, at the
Committee’s request, his deportation to India was suspended on 4 July 2017, pending the
Committee’s decision. However, he was forced to live as an undocumented migrant, without
access to health care and without identification papers. His attempts to regularize his stay
have all been rejected by the State Secretariat for Migration. On 7 June 2018, he was arrested
and charged with illegal stay in Switzerland. He was released after the intervention of his
lawyer, but continues to live in precarious conditions.
5.2
With regard to the risk of chain refoulement, the complainant asserts that he has
documented, through valid, publicly available and independent reports, that forceful
deportations and instances of chain refoulement of Tamils from India to Sri Lanka and other
refugees to their country of origin, despite their valid claims, have regularly occurred in
recent years. The State party has not been able to counter or present any evidence to the
contrary, except an unknown report of a fact-finding mission conducted by the State
Secretariat for Migration in September 2017. The complainant also submits that, allegedly
according to this report, the State Secretariat for Migration spoke to “about 16 interlocutors”
who “did not possess any information about forced deportations of Sri Lankan refugees from
India to Sri Lanka” and a “lawyer known from Chennai” who allegedly stated that there had
been no forced deportations in recent years, although the lawyer confirmed that there had
been court proceedings. The references to “about 16 interlocutors” and a “lawyer known in
Chennai” are extremely vague, and the conclusions the State party draws from this report to
refute the evidence presented by the complainant are far-reaching. The complainant argues
that these references cannot outweigh the detailed and publicly available sources of
information concerning the regular deportation of Tamils to Sri Lanka. The complainant
further notes that the State party has not offered the fact-finding report into evidence. The
report is not publicly available and is therefore unknown to the complainant. Without access
to the report and verification of its authenticity, the foundation for the statements therein and
the weight they should be given cannot be assessed, and the complainant cannot properly
respond to the State party’s observations. Consequently, the complainant moves to strike this
report from the evidence considered by the Committee if not produced for the defence to
refute it.
CAT/C/72/D/832/2017
6
5.3
Regardless of the admissibility of this report as evidence, the complainant maintains
that there is a real risk that he will be deported to Sri Lanka if returned to India. It is by no
means guaranteed that the complainant will be able to avail himself of legal protection,
allowing him to reside legally in India. On the contrary, it is more likely that he will be placed
on a plane to Colombo upon his arrival in India by an official who is unaware of the abstract
rules concerning non-refoulement and the Indian Supreme Court ruling on the issue in 1996.
Over 200 Rohingya persons are currently detained in India on charges of irregular entry. On
2 October 2018, the Special Rapporteur on contemporary forms of racism, racial
discrimination, xenophobia and related intolerance protested against the planned deportation
of seven Rohingya men from India to Myanmar. The complainant also cites the example of
a Tamil asylum-seeker who was returned to Sri Lanka after being deported from Australia in
December 2018 in support of his main argument that chain refoulement from India to Sri
Lanka continues to occur. The complainant contends that the risk of possible deportation of
refugees to their country of origin contradicts the State party’s assertion that India strictly
adheres to the principle of non-refoulement and is, therefore, a safe country for the
complainant. Lastly, the complainant emphasizes that the decision of the Federal Council
that India is a safe third country was a political decision made by the highest executive organ
in Switzerland, and not a decision based on an assessment of country of origin information.
5.4
The complainant contests the State party’s assertion that he was registered as a
“refugee” or “regular foreigner” in India and that he received support from the Government.
He maintains that he was never officially registered by the Indian authorities and that he was
not residing legally in India, as the Indian authorities no longer register Sri Lankans as
refugees since the end of the civil war. Instead, the complainant had to register with the
Ramapuran Police. He never received any document proving his registration in India and
therefore had neither the right to work legally nor to get a driving licence and was forced to
work illegally at night. The complainant disputes the findings of the Federal Administrative
Court that he had received an apartment as a consequence of his registration with the police,
thereby implying a causal relationship between the two events, when in fact, the complainant
clearly stated in his testimony that he had received no support from the Indian State. He was
not given an apartment by the Government, but by the Naam Tamilar Katchi party for whose
leader he later worked.
5.5
The complainant maintains that he was subject to constant surveillance, intimidation
and harassment by Q Branch of the Tamil Nadu Police since he was suspected of being
involved in the rebuilding of LTTE in India. Prior to his registration, the authorities had
already been notified of the complainant’s past as an LTTE member, and they confiscated
his passport. From 2014 to July 2015, the complainant worked as a driver for the leader of
the Naam Tamilar Katchi party, advocating for Tamil separatism and promoting LTTE. He
resigned due to repeated threats from Q Branch of the Tamil Nadu Police and members of
the Indian secret service. Nevertheless, he was still considered to be a threat by the Indian
authorities, which continued to closely monitor and harass him.
5.6
The complainant adds that, besides being harassed, he feared that he could be arrested
and put into a special camp for Sri Lankan Tamils at any time under the provisions of the
Foreigners Act, 1946, without any means of recourse or legal safeguards. He provides
evidence of orders issued by the Public Department of the State of Tamil Nadu showing that
Sri Lankan Tamils with links to LTTE are regularly detained in special camps by Q Branch
and that Indian courts have continued to reserve the absolute power of the Government to
expel foreigners without considering the non-refoulement principle.
5.7
The complainant notes that, under article 3 of the Convention, the State party has an
obligation to base its assessment not only on legal precepts and a 22-year-old Indian Supreme
Court ruling but on solid and assessable country of origin information to check if the
complainant has substantial grounds for believing he would be in danger of being subjected
to torture. The decisions of the Swiss courts are testimony to the fact that the complainant’s
case had not been assessed on its merits. Both were summary judgments in which the
arguments of the complainant were not fully taken into consideration. According to the
complainant, the Swiss authorities and courts, relayed by the State party in its submission,
have distorted his claims during the domestic proceedings to make it appear as if he had
received support from the Government of India and possessed a regular status in that country.
CAT/C/72/D/832/2017
7
Even though his claims were supported by tangible evidence, the Swiss authorities relied on
the general consideration that regarded India as a safe third country and failed to conduct a
proper review of his claim based on reliable and assessable country of origin information. On
the other hand, the State party has not presented any assessable evidence that would
contradict the complainant’s claim that he fears being subjected to treatment prohibited by
the Convention in India or being deported to Sri Lanka.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, in the present case,
the State party has not challenged the admissibility of the communication. Consequently, the
Committee finds no obstacle to admissibility and declares the communication admissible.
Consideration of the merits
7.1
In accordance with article 22 (4) of the Convention, the Committee has considered
the communication in the light of all the information made available to it by the parties.
7.2
The issue before the Committee is whether the removal of the complainant to India
would constitute a violation of the State party’s obligation under article 3 (1) of the
Convention not to expel or to return (“refouler”) a person to another State where there are
substantial grounds for believing that he or she would risk being subjected to torture or being
at risk of further deportation to a third State in which he or she would be in danger of being
subjected to torture.
7.3
In assessing whether there are substantial grounds for believing that the alleged victim
would be in danger of being subjected to torture, the Committee recalls that, under article 3
(2) of the Convention, States parties must take into account all relevant considerations,
including the existence of a consistent pattern of gross, flagrant or mass violations of human
rights in the country to which he or she would be returned. In this case, however, the
Committee must determine whether the complainant runs a personal risk of being subjected
to torture if he is returned to India. The existence of a consistent pattern of gross, flagrant or
mass violations of human rights in a country does not, as such, constitute sufficient reason
for determining that the complainant would be in danger of being subjected to torture on
return to that country; additional grounds must be adduced to show that the individual
concerned would be personally at risk.8 Conversely, the absence of a consistent pattern of
flagrant violations of human rights does not mean that a person might not be subjected to
torture in his or her specific circumstances.9
7.4
The Committee recalls its general comment No. 4 (2017) on the implementation of
article 3 of the Convention in the context of article 22, according to which the non-
refoulement obligation exists whenever there are “substantial grounds” for believing that the
person concerned would be in danger of being subjected to torture in a State to which he or
she is facing deportation, either as an individual or as a member of a group that may be at
risk of being tortured in the State of destination. Furthermore, the person at risk should not
be deported to another State where he or she may subsequently face deportation to a third
State in which there are substantial grounds for believing that he or she would be in danger
8 Alhaj Ali v. Morocco (CAT/C/58/D/682/2015), para. 8.3; R.A.Y. v. Morocco (CAT/C/52/D/525/2012),
para. 7.2; and L.M. v. Canada (CAT/C/63/D/488/2012), para. 11.3.
9 See, for example, E.K.W. v. Finland (CAT/C/54/D/490/2012), para. 9.3; and E.T. v. Netherlands
(CAT/C/65/D/801/2017), para. 7.3.
CAT/C/72/D/832/2017
8
of being subjected to torture.10 The Committee recalls that substantial grounds exist whenever
the risk of torture is “foreseeable, personal, present and real”.11 Indications of personal risk
may include, but are not limited to, the complainant’s: (a) ethnic background; (b) political
affiliation or political activities; (c) arrest without guarantee of a fair treatment and trial; (d)
previous torture; (e) incommunicado detention or other form of arbitrary and illegal detention
in the country of origin; (f) clandestine escape from the country of origin following threats
of torture; (g) religious affiliation; and (h) violations of the right to freedom of thought,
conscience and religion.12
7.5
The Committee recalls that the burden of proof is upon the complainant, who must
present an arguable case, that is, submit circumstantiated arguments showing that the danger
of being subjected to torture is foreseeable, personal, present and real.13 However, when
complainants are in a situation where they cannot elaborate on their case, the burden of proof
is reversed and the State party concerned must investigate the allegations and verify the
information on which the complaint is based.14 The Committee also recalls that it gives
considerable weight to findings of fact made by organs of the State party concerned; however,
it is not bound by such findings and will make a free assessment of the information available
to it in accordance with article 22 (4) of the Convention, taking into account all the
circumstances relevant to each case.15
7.6
In the present case, the Committee notes the complainant’s claim that if he were to be
returned to India he would face deportation to Sri Lanka where there is a foreseeable, real
and personal risk of him being subjected to torture or other cruel, inhuman or degrading
treatment or punishment. The Committee also notes the complainant’s argument that he could
not obtain the status of refugee in India in the absence of a law on refugees and with no
procedures to assess if a person is in danger of being subjected to torture and inhuman
treatment or punishment in his country of origin. The complainant alleges that he would have
no legal status or legal rights and would be subject to various restrictions in the exercise of
his fundamental rights, such as the right to work. The Committee further notes the
complainant’s fear of being arrested and detained in a special camp for Tamil refugees by Q
Branch of the Tamil Nadu Police. It also notes the complainant’s allegations that, while living
in India, he was continuously harassed and monitored by Q Branch, which suspected him of
rebuilding LTTE in India; that he resigned from his occupation as a driver to a well-known
Tamil politician in July 2015 following repeated threats; that the surveillance and acts of
intimidation persisted after his resignation; and that he left India as a result of these persistent
threats from the police and the Indian secret services.
7.7
The Committee also notes the State party’s position that there is no indication that
there is no effective protection against repatriation in India. In this regard, the Committee
notes in particular the State party’s observation that India has been recognized as a safe third
country by the Swiss Federal Court in 2007. The Committee further notes that, according to
the State party, even if India has not ratified the 1951 Convention or the 1967 Protocol
relating to the Status of Refugees, it applies the principle of non-refoulement across its
territory. It also notes the State party’s findings that there has been no forced repatriation of
Sri Lankan refugees in recent years; that there have only been a few judicial proceedings
involving extradition requests to Sri Lanka, which have all been rejected by Indian courts;
and that the Tamil Nadu State Assembly has allegedly issued a ban on refoulement of
refugees to Sri Lanka. The Committee notes the State party’s argument that the complainant
has not engaged in activities in India that would have given him an exposed profile, that his
stay has been regularized and that he lived in India continuously for five years.
10 General comment No. 4 (2017), para. 12. See also Avedes Hamayak Korban v. Sweden
(CAT/C/21/D/88/1997), para. 7; R.T. v. Australia (CAT/C/31/D/153/2000), para. 6.4;
CAT/C/GRC/CO/5-6, para. 19; and CAT/C/SRB/CO/2, para. 15.
11 General comment No. 4 (2017), para. 11.
12 Ibid., para. 45.
13 Ibid. See also Kalonzo v. Canada (CAT/C/48/D/343/2008) para. 9.3; X v. Denmark
(CAT/C/53/D/458/2011), para. 9.3; and W.G.D. v. Canada (CAT/C/53/D/520/2012), para. 8.4.
14 General comment No. 4, para. 38.
15 Ibid., para. 50. See also General comment No. 1, para. 9; T.D. v. Switzerland
(CAT/C/46/D/375/2009), para. 7.7; and Alp v. Denmark (CAT/C/52/D/466/2011), para. 8.3.
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7.8
The Committee recalls that it must ascertain whether the complainant would currently
face a risk of being subjected to torture or chain deportation in India.16 It notes that, while the
complainant alleges to have been subject to constant monitoring, intimidation and harassment
by Q Branch of the Tamil Nadu Police in connection to his profile as a former LTTE member,
he does not provide documentation indicating that he was subjected to torture or other
treatment contrary to article 3 of the Convention. The Committee notably remarks the
absence of a causal link between the harassment endured by the complainant in relation to
his work as the driver of a well-known Tamil politician and his departure from India,
considering the time-lapse of two years between his resignation and his departure from the
country. It notes that the complainant had ample opportunity to provide supporting evidence
and more details about his claims to the State Secretariat for Migration and the Federal
Administrative Court, but that the evidence provided did not lead the national authorities to
conclude that he would be at risk of being subjected to torture or cruel, inhuman or degrading
treatment upon his return.
7.9
The Committee also notes the State party’s findings that the complainant failed to
explain the interest the Indian authorities could have in him, considering that he only
performed ancillary tasks for LTTE, and how they would have been informed of his activities
in Sri Lanka. The Committee notes that, according to the State party, all Sri Lankan refugees
are subject to the same surveillance and monitored by the police. In this connection, the
Committee accepts the existence of special camps in which certain Sri Lankan Tamil refugees
are detained. However, background evidence provided by the complainant shows that
refugees are only sent to these special camps in two instances: after a preliminary screening
upon their arrival in India or at a later stage when camp refugees are suspected of being
involved in a crime or being a member of LTTE. The Committee observes that considering
the conditions of the complainant’s previous stay in India, it is extremely unlikely that he
will be arrested and detained in one of these camps upon his return.
7.10
The Committee notes that although the complainant asserts that he was not residing
in India legally and was never officially registered as a regular foreigner or a refugee, he was
nevertheless able to legally register with the police for an indefinite period, as a consequence
of which he received a residency permit. The complainant’s claim that he received no support
from the State and was in fact allocated an apartment by the Naam Tamilar Katchi party and
not the Indian authorities does not have an impact on these findings.
7.11
The Committee expresses concern at the lack of clearly defined asylum proceedings
in India and the fact that under Indian laws any non-citizen is viewed indiscriminately as
falling in a single broad category of “foreigner”. It is also concerned by reports that it is not
uncommon in India to detain asylum seekers on the charge of irregular entry. However, the
Committee recalls that the occurrence in the country of return of human rights violations is
not in and of itself sufficient for it to conclude that a complainant is personally at risk of
being tortured.17 The Committee considers that in the present case, the complainant has not
sufficiently demonstrated the existence of substantial grounds for believing that he would
face a specific and personal risk of torture or chain deportation upon his return to India. The
Committee considers that the complainant failed to demonstrate why he could not avail
himself of legal protection in India and apply to the competent authorities. The Committee
notes that the examples of forced repatriation of foreigners from India to their country of
origin are scarce and apply to different circumstances than the case at hand. It observes that
the principle of non-refoulement is generally upheld by Indian courts and that extradition
requests of Sri Lankan Tamils have all been rejected by courts in recent years, a fact that is
not refuted by the complainant.
8.
On the basis of the above considerations, the Committee considers that the
information in the file does not substantiate the claim that the complainant’s return to India
would expose him to a foreseeable, real and personal risk of torture.
16 E.g., G.B.M. v. Sweden (CAT/C/49/D/435/2010), para. 7.7.
17 E.g., I.E. v. Switzerland (CAT/C/62/D/683/2015), para. 7.8.
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9.
In the light of the foregoing, the Committee, acting under article 22 (7) of the
Convention, concludes that the complainant’s removal to India would not constitute a breach
of article 3 of the Convention by the State party.