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CAT/C/79/D/958/2019

R.T. v. Australia

UNO-Ausschuss gegen Folter (CAT) · 2024-04-29 · en UN

Inadmissibility decision; Subjects: AUSTRALIA, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

GE.24-10712 (E) 300924 300924

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 958/2019*, **, ***

Communication submitted by:

R.T. (represented by counsel, Noeline

Harendran)

Alleged victim:

The complainant

State party:

Australia

Date of complaint:

30 May 2019 (initial submission)

Document references:

Decision taken pursuant to rule 115 of the

Committee’s rules of procedure, transmitted to

the State party on 3 October 2019 (not issued in

document form)

Date of adoption of decision:

29 April 2024

Subject matter:

Deportation of the complainant to Sri Lanka

Procedural issue:

Level of substantiation of claims

Substantive issue:

Risk of torture upon return to country of origin

(non-refoulement)

Article of the Convention:

3

1.1

The complainant is R.T., a national of Sri Lanka born in 1987. At the time of

submission, his request for asylum in the State party had been rejected, and he was facing

deportation to Sri Lanka. The complainant claims that, if the State party were to proceed with

his deportation, it would be in violation of its obligations under article 3 of the Convention.

The State party has made the declaration pursuant to article 22 (1) of the Convention,

effective from 28 January 1993. The complainant is represented by counsel.

1.2

On 3 October 2019, pursuant to rule 114 of its rules of procedure, the Committee,

acting through its Rapporteur on new complaints and interim measures, decided to issue a

request for interim measures, namely, that the State party refrain from returning the

complainant to Sri Lanka while his complaint was under consideration by the Committee.

* Adopted by the Committee at its seventy-ninth session (15 April–10 May 2024).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,

Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.

*** A joint opinion by Committee members Todd Buchwald, Jorge Contesse and Peter Vedel Kessing

(partially dissenting) is annexed to the present decision.

United Nations

CAT/C/79/D/958/2019

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

30 September 2024

Original: English

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Facts as submitted by the complainant

2.1

The complainant is an ethnic Tamil. He arrived in Australia by boat on 26 October

2012. He applied for a protection visa on 29 December 2015 and attended an interview with

the Department of Immigration and Border Protection on 29 February 2016. He alleged that

his father was a Muslim and that his mother was a Tamil who had converted to Islam. In the

1980s and 1990s, members of his extended family had been targeted and killed for racial and

religious reasons. 1 Members of the Muslim community had been angered by the

complainant’s closeness to his mother’s Tamil family and had threatened him. He claimed

that, in 2009, some members of the Muslim community had reported him to the Sri Lanka

Army for his support for the Liberation Tigers of Tamil Eelam (LTTE)2 and that, between

2008 and 2012, he had been questioned by the police and detained for two to three hours in

an army camp near his home. He had been asked to give the police alcohol and money. In

2012, he had supported a Tamil politician running for election. To avoid being killed by

Muslim men,3 the complainant had left his home region, in September 2012, for Colombo,4

where he had stayed with a friend for approximately one month. He had departed for

Australia on 10 October 2012. Upon arrival on West Island, Cocos (Keeling) Islands, on

26 October 2012, the complainant had been detained. On 12 February 2013, he had been

released on a bridging visa.

2.2

On 3 December 2015, the complainant was notified that the Minister for Immigration

and Border Protection had exercised his discretion to allow the complainant to apply for a

protection visa. On 29 December 2015, he applied for a Safe Haven Enterprise Visa and, on

29 February 2016, attended an interview in Brisbane. On 5 July 2016, his application was

rejected, following a fast-track assessment, by the Department of Immigration and Border

Protection, which found no substantial grounds for believing that there was a real risk that

the complainant would suffer significant harm upon return to Sri Lanka. The Department

stated that, while the complainant might be killed due to his political opinions if he returned

to his home region, the real risk of persecution did not extend to all parts of Sri Lanka.

Consequently, it decided that the complainant, a healthy young man without dependants and

with business experience and language proficiency in Tamil, Singhalese and English, could

relocate to Colombo. The complainant’s application was forwarded to the Immigration

Assessment Authority, an independent office within the Migration and Refugee Division of

the Administrative Appeals Tribunal, which rejected it on 21 June 2016.

2.3

The complainant appealed to the Federal Circuit Court of Australia for a review of the

decisions of the Department of Immigration and Border Protection and Immigration

Assessment Authority. On 13 October 2017, the complainant’s appeal was dismissed, as the

Court did not find any error in the contested decisions. Subsequent appeals by the

complainant were also dismissed.

Complaint

3.1

The complainant submits that, if he is returned to Sri Lanka, he will face a real risk of

being tortured and suffering cruel, inhuman or degrading treatment or punishment, in

violation of article 3 of the Convention.

3.2

As a suspected supporter of LTTE, the complainant fears that, if he returns to Sri

Lanka, he will be killed by the Sri Lanka Army or by security authorities because he left Sri

Lanka illegally and sought asylum in Australia. He also fears that he would be killed by

Muslim men in his community because he worked for the Tamil National Alliance in

connection with the local elections in 2012.

1 There were numerous attacks by Liberation Tigers of Tamil Eelam (LTTE) members against Muslims

in and around the complainant’s home region in 1990, including an attack against a mosque that

killed more than 100 persons. The complainant submitted the birth certificates of two of his uncles,

who, he claims, were killed by Islamist militant groups in his home region.

2 No detailed information was provided, but it seems that there is no relation between the complainant

and LTTE.

3 The complainant does not report any specific threat received in this regard.

4 The complainant refers to the protection assessment visa interview.

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State party’s observations on admissibility and the merits

4.1

On 7 May 2020, the State party submitted observations on the admissibility and merits

of the communication. It argues that the communication should be declared inadmissible, as

the complainant’s claims in respect of a future risk of harm are inadmissible ratione materiae,

and adds that the claims are manifestly unfounded under rule 113 (b) of the Committee’s

rules of procedure. Concerning the merits, the State party contends that the claim under

article 3 of the Convention is without merit, as there is no evidence to suggest that there are

substantial grounds for believing that the complainant would be in danger of being subjected

to torture as defined in article 1 of the Convention.

4.2

Regarding the admissibility of the communication, the State party argues that, in

accordance with the Committee’s jurisprudence, 5 the obligation under article 3 of the

Convention must be interpreted by reference to the definition of torture set out in article 1. It

adds that the obligation of non-refoulement under the Convention is confined to torture and

does not extend to cruel, inhuman or degrading treatment or punishment.6 The State party

notes that, if it is established that the acts to which a complainant alleges that he or she would

be subjected would constitute torture, article 3 of the Convention also requires that there exist

substantial grounds for believing that he or she would be in danger of being subjected to

torture and that the risk of torture be foreseeable, personal, present and real.7 Furthermore,

the State party maintains that the onus of proving that there is such a risk rests with the

complainant and that this risk must be assessed on grounds that go beyond mere theory or

suspicion.8

4.3

The State party contends that the complainant has failed to provide exhaustive

arguments to support his allegation of a violation of article 3 in a way that establishes a prima

facie case for the purpose of admissibility.9 In addition, it points out that the complainant’s

claims have been thoroughly considered as part of a series of domestic decision-making

processes, including by a delegate of the Minister for Immigration and Border Protection, the

Immigration Assessment Authority, the Federal Circuit Court, the Federal Court of Australia

and the High Court of Australia. The complainant’s claims were also assessed during the

ministerial intervention process. The State party specifies that the complainant’s claims were

considered as part of robust domestic processes and determined not to be credible and not to

engage its non-refoulement obligations. Furthermore, it acknowledges that complete

accuracy is seldom to be expected of victims of torture10 and clarifies that the domestic

decision makers took this into consideration when forming their views on the complainant’s

credibility.

4.4

Regarding the merits of the communication, the State party holds that, if the

Committee considers the complainant’s claims to be admissible, they are without merit, as

demonstrated by the fact that they were thoroughly assessed as a part of the protection visa

application process. The State party refers to the decision of the delegate of the Minister for

Immigration and Border Protection of 24 September 2013, by which it was concluded that

the complainant did not have a well-founded fear of persecution under the Migration Act and

that there were no substantial grounds for believing that, if the complainant were removed

from the State party to Sri Lanka, there was a real risk that he would suffer significant harm

(such as torture or arbitrary deprivation of life), for reasons including the fact that the

complainant would be able to safely relocate within Sri Lanka. While the delegate accepted

that the complainant might be harmed due to his political opinions if he returned to his home

region, the real risk of persecution did not extend to all parts of Sri Lanka. Consequently, it

was decided that the complainant could relocate to Colombo.11 The delegate accepted that

the complainant had been asked for bribes, detained, questioned and slapped by members of

5 G.R.B. v. Sweden (CAT/C/20/D/83/1997), para. 6.5.

6 Y.Z.S. v. Australia (CAT/C/49/D/417/2010), para. 4.10.

7 General comment No. 4 (2017), para. 11.

8 Thirugnanasampanthar v. Australia (CAT/C/61/D/614/2014), para. 8.4.

9 General comment No. 4 (2017), para. 31.

10 Alan v. Switzerland (CAT/C/16/D/21/1995), para. 11.3.

11 The complainant’s claims were found not to satisfy the criteria set out in section 36 (2) of the

Migration Act 1958.

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the Sri Lanka Army but considered that the Sri Lanka Army would have treated the

complainant far more severely if he had been a suspected LTTE member.

4.5

The delegate concluded that, while the complainant might be at risk of discrimination

or low-level harassment if returned to Sri Lanka, he was not satisfied that the complainant

had any real or supposed profile that would be of particular interest to the Sri Lankan

authorities that would cause him to face a real risk of persecution if returned to Sri Lanka.

The delegate accepted the complainant’s claim that, as a Muslim who had associated with

Tamils in his home region, the complainant would have drawn negative attention from more

fundamentalist members of the Muslim community. The delegate also accepted that the

complainant had been targeted by members of the Muslim community due to his support for

a Tamil National Alliance candidate in the 2012 provincial election in Batticaloa. The

delegate further accepted the complainant’s claim that he had travelled from his home region

to Colombo on the night of the 2012 election in order to escape from a mob of Muslim men

who had wanted to harm him because of his support for the Tamil National Alliance

candidate.

4.6

The delegate considered that, due to his status as a person who had departed Sri Lanka

illegally, in case of return, there was a low risk of the complainant being subjected to serious

harm amounting to persecution. The delegate accepted that, if the complainant were to return

to his home region, he would face a real risk of significant harm from the Muslim population.

However, the delegate found that, as the alleged risk of harm and persecution raised by the

complainant, as described above, did not extend to all parts of Sri Lanka, the complainant

would be able to safely relocate to Colombo to avoid the real risk of significant harm that he

faced in his home region. The delegate concluded that the complainant did not have a

well-founded fear of persecution under the Migration Act and that there were no substantial

grounds for believing that, if he were removed from Australia to Sri Lanka, there was a real

risk that he would suffer significant harm (such as torture or arbitrary deprivation of life), for

reasons including the fact that the complainant would be able to safely relocate within Sri

Lanka.

4.7

The Department of Immigration and Border Protection referred the delegate’s

decision to refuse an application for a Safe Haven Enterprise Visa to the Immigration

Assessment Authority for a merits review. The complainant produced some new information,

including the claim that his parents had told him that people had been regularly making

enquiries about him and the claim that he was afraid that those people would become aware

of his presence if he returned to Sri Lanka. The Authority was not satisfied that there were

people looking for the complainant because they intended to harm him or that those enquiries

indicated the existence of a real risk that the complainant would face serious harm upon return.

On 10 August 2016, the Authority affirmed the delegate’s decision not to grant the

complainant a Safe Haven Enterprise Visa. The Authority concluded that, even if there was

a real risk of such mistreatment if the complainant returned to his home town, the risk did not

relate to all areas of Sri Lanka.

4.8

The State party informs the Committee that, on 13 October 2017, the Federal Circuit

Court of Australia dismissed the complainant’s request for judicial review of the decision of

the Immigration Assessment Authority. The Court dismissed each of the main arguments put

forward by the complainant. The Court dismissed the argument that the Authority’s decision

was irrational, illogical and unreasonable on the basis that the complainant had

misunderstood both the Authority’s reasoning and what constituted legal reasonableness. The

Court also dismissed the second argument raised by the complainant, namely, that the

Authority had failed to consider established principles in relation to his relocation. In this

regard, the Court held that, contrary to the complainant’s argument, there was no established

principle that made relocation irrelevant in cases in which persecution emanated from a

legitimate State agent. The Court held that the Authority’s reasoning showed that it had

addressed the issue of relocation on the basis of relevant facts. Furthermore, the Court

considered the complainant’s claim that the behaviour of the Sri Lanka Army in the local

area was indicative of the organization’s behaviour more generally and across the country.

The Court concluded that that argument did not support the contention that there had been

any jurisdictional error in the way in which the issue had been dealt with by the Authority.

The Court considered the complainant’s argument that, even if motivated by personal interest,

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the local soldiers who had extorted money from him had also done so for a reason under the

Convention relating to the Status of Refugees and the Protocol thereto (a so-called

Convention reason). The Court noted that that argument rose no higher than an attack on the

merits of the Authority’s conclusion and was not an argument regarding jurisdictional error.

The Court concluded that the complainant’s argument that the Authority had erred in finding

that there was no record of the complainant having had or been suspected of involvement

with LTTE raised no judicial error and must be rejected.

4.9

The State party submits that, on 15 March 2018, the complainant’s application for

leave to appeal the decision of the Federal Circuit Court to the Federal Court of Australia

was dismissed. The Federal Court of Australia concluded that there was no merit in the

complainant’s argument that the Immigration Assessment Authority should have considered

whether the facts found by it led to a conclusion that he had a well-founded fear of persecution

within the meaning of the Migration Act and noted that such an argument raised no issues

regarding jurisdictional error. The Federal Court of Australia also concluded that the

complainant had misunderstood the reasoning of the Federal Circuit Court when making that

argument, which did not raise any issues that had any prospect of success on appeal. On 15

August 2018, the complainant’s application for special leave to appeal to the High Court of

Australia was refused, as it did not raise any reason to doubt the correctness of the decision

of the Federal Court of Australia. On 4 April 2019, the Department of Home Affairs

dismissed the complainant’s request for ministerial intervention based on exceptional

circumstances, namely, mental health issues. 12 On 7 May 2019, a second request for

ministerial intervention, reiterating most of the complainant’s previous claims, was dismissed.

On 29 May 2019 and 18 June 2019, respectively, the Department rejected two further

requests for ministerial intervention, dated 23 May 2019 and 14 June 2019, in which the

complainant claimed that he was from the same town as the Muslim terrorist Zahran Hashim,

who was considered to have been the mastermind behind the bombings that had occurred on

21 April 2019 (known as the “Easter bombings”), and that, because of the bombings,

Muslims had been subjected to persecution by the Sri Lankan authorities and other groups in

Sri Lanka. The Department found that the complainant’s claims regarding the Easter

bombings were not likely to engage the protection obligations of Australia. In response to all

the complainant’s requests for ministerial intervention, the Department concluded that the

complainant’s claims did not meet the criteria set out in the guidelines for ministerial

intervention, and none of the requests was referred to the Minister for Immigration and

Border Protection.

4.10

In relation to the Easter bombings, the State party argues that, in assessing the

complainant’s request for ministerial intervention, the Department of Home Affairs

considered the complainant’s claims that he would be targeted by the Sri Lankan authorities

and groups in the Sri Lankan community in the aftermath of the Easter bombings due to his

profile as a Muslim. The Department considered the evidence presented by the complainant,

including an image of his birth certificate, social media images of alleged attacks against

Muslims, information on Sri Lanka and several letters of support. The Department noted that,

while the violence that had occurred in Sri Lanka in the aftermath of the Easter bombings

had been widely publicized in the media, the complainant had not presented any credible

information that, in view of that violence, he would be personally at risk if he returned to Sri

Lanka. The Department concluded that there was no evidence to suggest that the complainant

would be selectively or discriminatorily affected by the violence in Sri Lanka. The

Department also concluded that the violence feared by the complainant was faced by the

population generally and not by him personally.

4.11

The Department of Home Affairs accepted that the complainant was a Muslim man

from the same area as some of the Easter bombing terrorists and noted his claims that the

combination of that fact and the fact that he had been outside Sri Lanka for some time might

12 The guidelines for ministerial intervention set out the circumstances in which the competent minister

may wish to consider exercising the power of ministerial intervention under section 48B of the

Migration Act. It is relevant that the minister may wish to consider exercising the public interest

power under section 48B where there are exceptional circumstances that justify considering new

information or where significant changes in circumstances have occurred subsequent to a protection

visa refusal decision.

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raise suspicion about his potential involvement in a terrorist group. However, the Department

noted that, on the basis of the information provided by the complainant in his application for

ministerial intervention about the aftermath of the Easter bombings, the Sri Lankan

authorities had been focusing their suspicions on Islamist militants with links to foreign

groups. The Department also noted that, despite the complainant’s claims that he might be

suspected of involvement in terrorist groups, there was no evidence that he was linked to any

such groups.

4.12

On the basis of the information provided by the complainant about the aftermath of

the Easter bombings, the Department of Home Affairs accepted that, in the complainant’s

region of origin, Muslims had been subjected to reprisals perpetrated by other Sri Lankan

citizens. However, the Department noted that, on the basis of the same information, the Sri

Lankan authorities had put in place curfews and had arrested persons who had committed

crimes against the Muslim population. Accordingly, the Department found that there was no

reason to believe that the complainant would be denied the effective protection of the Sri

Lankan authorities. The State party, therefore, submits that the complainant has not provided

sufficient evidence to indicate that there are substantial grounds for believing that he would

be personally at risk of treatment amounting to torture under article 1 of the Convention.

Complainant’s comments on the State party’s observations on admissibility and the

merits

5.

On 17 May 2021, the complainant submitted his comments on the State party’s

observations. He claims that the State party’s observations are contrary to the assessment

made by the delegate, who found multiple times that the complainant feared persecution

involving serious harm. He argues that, contrary to the State party’s contention, his relocation

upon return would be impossible, as he would be obliged to return to his home region for

administrative reasons.13 On 2 July 2021, the complainant submitted that he had a wife and

children in Australia and that removing him to Sri Lanka was a breach of the Convention on

the Rights of the Child insofar as it related to his children and an attack on and interference

with his family.

State party’s additional observations

6.

On 17 August 2023, the State party submitted that, to the extent that the complainant’s

comments on its observations on admissibility and the merits related to alleged violations of

other international instruments, namely, the Convention on the Rights of the Child and the

International Covenant on Civil and Political Rights, they were inadmissible. It submitted

that a number of the complainant’s claims related to the rights of his wife and children and

that, in the absence of any authorization for him or his representatives to submit a complaint

on behalf of his wife and children, those claims were inadmissible.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

The Committee notes that, in the present case, the State party has argued that the

communication is inadmissible as manifestly unfounded, as the complainant has not

substantiated the existence of substantial grounds for believing that he would face a

foreseeable, present, personal and real risk of torture if returned to Sri Lanka.

7.2

Before considering any complaint 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.

7.3

The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it

shall not consider any communication from an individual unless it has ascertained that the

13 The complainant stated that he would have to return to his home town to obtain a letter from the local

authorities to use as proof of citizenship and address.

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individual has exhausted all available domestic remedies. The Committee notes that, in the

present case, the State party has not contested that the complainant has exhausted all available

domestic remedies. The Committee is therefore satisfied that it is not precluded from

considering the communication under article 22 (5) (b) of the Convention.

7.4

The Committee notes that the State party challenges the admissibility of the

complainant’s claims under article 3 as manifestly unfounded. The Committee considers,

however, that the communication has been sufficiently substantiated for the purposes of

admissibility. As the Committee finds no obstacles to admissibility, it declares the

communication submitted under article 3 of the Convention to be admissible and proceeds

with its consideration of the merits.

Consideration of the merits

8.1

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.

8.2

In the present case, the issue before the Committee is whether the return of the

complainant to Sri Lanka would violate the State party’s obligation under article 3 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 be in danger of being subjected to

torture.

8.3

The Committee must evaluate whether there are substantial grounds for believing that

the complainant would be personally in danger of being subjected to torture upon return to

Sri Lanka. 14 In assessing that risk, the Committee must take into account all relevant

considerations, pursuant to article 3 (2) of the Convention, including the existence of a

consistent pattern of gross, flagrant or mass violations of human rights. However, the

Committee recalls that the aim of such determination is to establish whether the individual

concerned would be personally at a foreseeable and real risk of being subjected to torture in

the country to which he or she would be returned. It follows that the existence of a pattern of

gross, flagrant or mass violations of human rights in a country does not as such constitute

sufficient reason for determining that a particular person 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. 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.

8.4

The Committee recalls its general comment No. 4 (2017), according to which the

Committee will assess “substantial grounds” and consider the risk of torture as foreseeable,

personal, present and real when the existence of credible facts relating to the risk by itself, at

the time of its decision, would affect the rights of the complainant under the Convention in

case of his or her deportation.15 Indications of personal risk may include, but are not limited

to: (a) the complainant’s ethnic background; (b) political affiliation or political activities of

the complainant or his or her family members; (c) arrest or detention without guarantee of

fair treatment and trial; (d) sentence in absentia; and (e) previous torture (para. 45). With

respect to the merits of a communication submitted under article 22 of the Convention, the

burden of proof is upon the author of the communication, who must present an arguable case,

that is, submit substantiated arguments showing that the danger of being subjected to torture

is foreseeable, present, personal and real (para. 38). 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, as it can 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 (para. 50).

8.5

The Committee recalls that, when assessing the existence of a risk under article 3,

torture suffered in the past is only one element to be taken into account by the Committee,

because, for the purposes of article 3 of the Convention, the individual concerned must face

14 N.T. v. Australia (CAT/C/72/D/944/2019), para. 8.3; and D.S. v. Australia (CAT/C/73/D/941/2019),

para. 10.3.

15 T.Z. v. Switzerland (CAT/C/62/D/688/2015), para. 8.4.

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a foreseeable, real and personal risk of being tortured in the country to which he or she is

returned.16 The Committee also recalls that, although past events may be of relevance, the

principal question before the Committee is whether the complainant currently runs a risk of

torture if returned to Sri Lanka.17

8.6

In the present case, the Committee notes the complainant’s claims that he would face

a risk of torture if returned to Sri Lanka because of his real and supposed LTTE connections.

The Committee also notes that the State party’s authorities accepted that the complainant had

been arrested, detained, asked for bribes, questioned and slapped by members of the Sri

Lanka Army. The Committee accepts that the complainant may be at risk of discrimination

or low-level harassment if returned to Sri Lanka. However, the State party’s authorities were

not satisfied that the complainant had any real or supposed profile that would be of particular

interest to the Sri Lankan authorities and would cause him to face a real risk of persecution

if returned to Sri Lanka. The Committee notes the State party’s argument that the Sri Lanka

Army would have treated the complainant far more severely if he had been a suspected LTTE

member.

8.7

The Committee notes the complainant’s claim that, as a Muslim associated with

Tamils in his home region, he was targeted by fundamentalist Muslims from his community

and his claim that, in 2012, he had travelled from his home region to Colombo to escape a

mob of Muslim men. The Committee also notes that the State party considered that, as a

person who had departed Sri Lanka illegally, in case of return to his home region, he would

face a significant risk from the Muslim population. However, the Committee further notes

that, according to the State party, upon return to Sri Lanka, the complainant would be able to

avoid the risk of irreparable harm by safely relocating to Colombo. The Committee notes the

complainant’s argument that his immediate relocation upon return is impossible, as he would

be obliged to return to his home region for administrative reasons. However, the Committee

also notes that authorities of the State party thoroughly evaluated the issue of relocation on

the basis of relevant facts that were made available to them (see para. 4.8 above).

8.8

In relation to the Easter bombings, the Committee notes the complainant’s contention

that, due to his profile as a Muslim from the affected region, he would be targeted upon return

to Sri Lanka. However, the Committee also notes that, according to the State party, there is

no evidence to suggest that the complainant would be selectively targeted for acts of violence

upon return to Sri Lanka. The Committee further notes that the violence feared by the

complainant is faced by the general population.

9.

In the light of the above considerations, the Committee concludes that, in the

particular circumstances of the present case, the evidence and circumstances invoked by the

complainant do not amount to sufficient grounds for believing that he would face a real,

foreseeable, personal and present risk of being subjected to torture in case of his removal to

Sri Lanka. The Committee thus considers that the materials on file do not enable it to

conclude that the return of the complainant would constitute a violation of article 3 of the

Convention. The aforesaid notwithstanding, the Committee invites the State party to follow

up on the situation of the complainant following his return to Sri Lanka.

10.

In these circumstances, the Committee, acting under article 22 (7) of the Convention,

concludes that the removal of the complainant to Sri Lanka by the State party would not

constitute a breach of article 3 of the Convention.

16 B.N.T.K. v. Sweden (CAT/C/64/D/641/2014), para. 8.7.

17 Thirugnanasampanthar v. Australia, para. 8.7; and S.H. v. Australia (CAT/C/65/D/761/2016),

para. 9.5.

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Annex

Joint opinion of Committee members Todd Buchwald, Jorge

Contesse and Peter Vedel Kessing (partially dissenting)

1.

We write separately to express our concerns regarding the Committee’s reasoning in

addressing the portion of the present communication that deals with the complainant’s claim

that he would be targeted by fundamentalist Muslims if returned to Sri Lanka (para. 3.2).

2.

As set out in the Committee’s decision, the State party’s authorities “accepted that, if

the complainant were to return to his home region, he would face a real risk of significant

harm from the Muslim population”. The State party’s authorities nevertheless concluded that

“the complainant would be able to safely relocate to Colombo to avoid the real risk of

significant harm that he faced in his home region” (para. 4.6). The conclusion of the State

party’s authorities thus involves a version of the “internal flight alternative”, namely, the

removal of a person “to an area of a State where the person would not be exposed to torture,

unlike in other areas of the same State”.1

3.

For its part, the Committee has concluded that the internal flight alternative “is not

reliable or effective”. 2 Some have criticized the rule as an overreach. 3 The present

communication is a good case to test the scope of the doctrine. In our view, the reliability or

effectiveness of the internal flight alternative depends on the particular facts and

circumstances of a given situation. The notion that the internal flight alternative is not reliable

or effective should be thought of as a presumption rather than as a hard-and-fast rule.

4.

In fact, notwithstanding its statement in general comment No. 4 (2017), the

Committee has itself recognized as much. For example, in N.S. v. Canada, the Committee

concluded that the internal flight alternative was ordinarily “not an admissible option” unless

the Committee had received reliable information before the deportation that the State of

return had taken effective measures to guarantee the full and sustainable protection of the

rights of the person concerned.4 In taking such an approach, the Committee did not reject

outright reliance on the internal flight alternative but found it incumbent upon the State party

to carry the burden of proof in establishing that the person to whom it was being applied

would be sufficiently protected from the risk of torture or at least to come forward with a

reasoned basis for its conclusion that the threat that the prospective deportee was otherwise

facing would not exist if the person were relocated as proposed.5

5.

In the present case, however, the Committee offers no explanation regarding what it

considers that the State party did to meet this burden. In its decision, the Committee notes

that, “according to the State party, upon return to Sri Lanka, the complainant would be able

to avoid the risk of irreparable harm by safely relocating to Colombo”. While such a

conclusion is valid, the reasoning provided to support it is in our view insufficient. It is

indicated in the Committee’s decision only that the State party’s authorities reached that

conclusion after having “thoroughly evaluated the issue of relocation on the basis of relevant

facts that were made available to them” (para. 8.6).

6.

With due respect to the Committee, the assertion that the State party “thoroughly

evaluated” the relevant facts cannot substitute for an explanation of what those facts were.

1 General comment No. 4 (2017), para. 47.

2 Ibid.

3 See, for example, Başak Çali and Stewart Cunningham, “Part 2: a few steps forward, a few steps

sideways and a few steps backwards. The CAT’s revised and updated GC on non-refoulement”,

EJIL:Talk!, 21 March 2018.

4 CAT/C/59/D/582/2014, para. 9.6.

5 See also the Office of the United Nations High Commissioner for Refugees, “Guidelines on

international protection: ‘internal flight or relocation alternative’ within the context of article 1A(2) of

the 1951 Convention and/or 1967 Protocol relating the Status of Refugees”, 23 July 2003. According

to the guidelines, it is for the State to identify the proposed area of relocation and provide evidence

establishing that it is a reasonable alternative for the individual concerned.

CAT/C/79/D/958/2019

10

GE.24-10712

The absence of such an explanation provides the reader with no basis on which to understand

what facts and circumstances were found by the Committee to be sufficient to support the

conclusion that it was appropriate to rely on the internal flight alternative in the circumstances

of the present case. State party authorities are not provided with any guidance as to the

standards to which the Committee believes they should conform in their conduct when they

face similar circumstances in future cases. In its decision, the Committee simply indicates

that officials should think about the issue “thoroughly”, but it fails to indicate what officials

should think thoroughly about.

7.

In view of the above, we believe that the Committee should have described the

substantive considerations upon which the State party’s conclusions are based and which the

Committee views as satisfactory and should not simply have relied upon cursory assertions

that those considerations were “thoroughly evaluated”.