opencaselaw.ch

CAT/C/72/D/832/2017

K.S. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2021-11-18 · en CH

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

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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

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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

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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

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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.