opencaselaw.ch

CAT/C/80/D/1088/2021

P.S. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2024-07-12 · 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.24-13975 (E) 090924 100924

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1088/2021*, **

Communication submitted by:

P.S. (represented by counsel from the association

Elisa-Asile)

Alleged victim:

The complainant

State party:

Switzerland

Date of complaint:

13 August 2021 (initial submission)

Document references:

Decision taken pursuant to rules 114 and 115 of

the Committee’s rules of procedure, transmitted

to the State party on 25 August 2021 (not issued

in document form)

Date of adoption of decision:

12 July 2024

Subject matter:

Deportation to Sri Lanka

Procedural issue:

None

Substantive issue:

Risk of torture or other cruel, inhuman or

degrading treatment or punishment, if deported

to country of origin (non-refoulement)

Articles of the Convention:

3, 14 and 16

1.1

The complainant is P.S.,1 a national of Sri Lanka born in 1976. He applied for asylum

in Switzerland, but his application was rejected. He is facing deportation to Sri Lanka and

claims that his deportation would constitute a violation by the State party of articles 3, 14 and

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

the Convention, effective from 2 December 1986. The complainant is represented by counsel.

1.2

On 25 August 2021, pursuant to rule 114 of its rules of procedure, the Committee,

acting through its Rapporteur on new complaints and interim measures, asked the State party

not to expel the complainant to Sri Lanka while the complaint was being considered.

* Adopted by the Committee at its eightieth session (8–26 July 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.

1 The complainant has requested anonymity.

United Nations

CAT/C/80/D/1088/2021

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

13 August 2024

English

Original: French

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Factual background

2.1

The complainant is of Tamil ethnicity. He left Sri Lanka with his passport in June

2016 and travelled to Switzerland, where he applied for asylum on 6 June 2016. He was heard

by the State Secretariat for Migration on 10 June 2016, 21 September 2017 and 5 October

2018.

2.2

During the hearings, the complainant stated that he had voluntarily joined the

Liberation Tigers of Tamil Eelam in 1995 and had worked for them until 2005,2 when he left

the movement on account of a dispute with a superior. In 2006, he left Sri Lanka and applied

for asylum in England, but his application was rejected in December 2008 and he was

deported to Sri Lanka. At Colombo airport, he was interrogated for twelve hours. As soon as

he left the airport, he was arrested by officers of the Criminal Investigation Department and

held in a prison in Colombo for a fortnight. During that time, he was interrogated about his

activities with the Liberation Tigers of Tamil Eelam and was tortured − beaten, tied up and

hit on the heels − and subjected to sexual abuse.3 He was eventually taken to hospital, where

his brother managed to secure his release by paying a bribe. Fearing for his safety, the

complainant lived in hiding with his brother for several years. In 2013, he moved in with the

woman he had just officially married.

2.3

In May 2016, Sri Lankan military personnel found explosives some thirty kilometres

from the place where the complainant was living. Officers from the Criminal Investigation

Department began to actively seek out and arrest former members of the Liberation Tigers

of Tamil Eelam. On 14 May 2016, members of the Sri Lankan authorities searched for the

complainant at his parents’ home. The following day, they searched for him at his wife’s

home. Terrified by the idea of being detained and tortured again, the complainant organized

his departure from Sri Lanka with the help of his brother and a people smuggler.

2.4

On 24 January 2019, the State Secretariat for Migration rejected his asylum

application on the basis that his claims were implausible. The State Secretariat noted

contradictions in his account. For example, he had initially stated that he had received a call

after the alleged visit from the military and that he could tell from the accent of the callers

that they were military personnel. However, at his second hearing, the complainant stated

that he had received several anonymous calls that he had not answered. When asked about

these contradictions, the complainant offered no convincing explanation.

2.5

Furthermore, the State Secretariat for Migration noted that the complainant had left

his country with his passport, under his own identity, in all likelihood legally. If the

authorities of his country had really had him in their sights, he would not have been able to

leave Sri Lanka from Colombo airport with his passport. The claim that the complainant had

been assisted by a people smuggler was not considered a sufficient explanation. The State

Secretariat therefore concluded that it was unlikely that the complainant had left Sri Lanka

for the alleged reasons.

2.6

On 26 February 2019, the Federal Administrative Court, considering that the State

Secretariat for Migration had ruled on the basis of an imprecise factual situation as it had

failed to investigate the complainant’s state of health, upheld the complainant’s appeal,

quashed the decision of the State Secretariat and referred the case back to it for

reconsideration.

2.7

On 5 July 2019, the State Secretariat for Migration once again rejected the

complainant’s request for asylum. It considered that his statements could not be considered

credible as they were contradictory and particularly insubstantial. The State Secretariat noted

that the complainant did not claim to have had any personal contact with the Sri Lankan

authorities who had allegedly sought to arrest him. The State Secretariat expressed doubts as

to whether the Sri Lankan authorities would be interested in the complainant eight years after

the end of the war. Moreover, it noted that if the authorities had really had him in their sights,

2 He was responsible for gathering information, denouncing people who acted against the Liberation

Tigers of Tamil Eelam, collecting a 10 per cent tax from the population for the organization and

recruiting civilians for a training camp.

3 In a medical report dated 23 July 2019, the complainant allegedly confided to his therapist that he had

been sodomized with a glass bottle and forced to have oral sex.

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he would not have been able to leave Sri Lanka from Colombo airport using his passport.

The State Secretariat concluded that, despite his past involvement with the Liberation Tigers

of Tamil Eelam, the complainant did not appear to be at risk. He had not had any problems

with the authorities when the war had ended and had not deemed it necessary to live in hiding.

2.8

In addition, the State Secretariat for Migration found that the complainant’s political

involvement in Switzerland had not been significant enough to attract the attention of the Sri

Lankan authorities. He had simply taken part in demonstrations outside the Palais des Nations

in Geneva. Regarding the complainant’s state of health, the State Secretariat noted that,

according to a medical report dated 19 February 2019,4 he suffered from post-traumatic stress

disorder, recurrent depressive disorder and alcohol dependence syndrome. However, the

State Secretariat noted that the district where the complainant lived had no fewer than six

psychiatric hospitals and that the antidepressants he had been prescribed, or at least their

equivalent, were also available in Sri Lanka.

2.9

On 26 February 2021, the Federal Administrative Court dismissed the complainant’s

appeal on the basis that he had not substantiated his claim that the Sri Lankan authorities had

searched for him following his release in 2008 in exchange for a bribe or his claim that they

had resumed their search following the discovery of explosives in May 2016. His claims were

not supported by any concrete evidence or reliable and decisive proof. In particular, the Court

found that a hospital document, dated 28 July 2019, stating that the complainant had

undergone colorectal surgery for haemorrhoids on 27 January 2009, did not in any way prove

the alleged torture for which he had reportedly been hospitalized in Colombo.

2.10

The Court considered that if the complainant had been suspected of still having links

with the Liberation Tigers of Tamil Eelam, he could not plausibly have been released in

exchange for a bribe to the person in charge of his case; sought treatment in hospital in 2009

and then accompanied his wife to hospital in 2013 without being detected and arrested; or

moved into his brother’s home and then his wife’s home without the authorities looking for

him in these places. In other words, the officers of the Criminal Investigation Department

would not have waited for the discovery of explosives, in May 2016, to resume their search

for former members of the Liberation Tigers of Tamil Eelam, such as the complainant. The

Sri Lankan authorities knew that he was back in the country as early as 2008, because he was

subjected to checks and questioned for several hours at the airport, then arrested and

interrogated by Criminal Investigation Department officers on leaving the airport.

2.11

The Court went on to note that the complainant had been able to renew his passport

just before leaving Sri Lanka and to leave the country by air, which is the means of travel

that involves the most checks, using his passport. This supports the conclusion that he was

not in the authorities’ sights when he left the country in May 2016, or even following his

release in December 2008. If he had been on the authorities’ radar, he would have been put

on the stop list. The Court therefore concluded that the torture suffered in December 2008,

however plausible, was not the basis for the complainant’s application for protection.

2.12

Lastly, the Court considered the medical reports of 30 January, 19 February and

23 July 2019 and found that, although the complainant’s medical situation should in no way

be minimized, the reports did not demonstrate that his state of health was so poor as to prevent

his deportation. The Court noted that, when the complainant arrived in Switzerland, he had

been suffering from the diagnosed disorders since 2008 and had therefore been able to remain

in his country for eight years. Given that he had been treated for haemorrhoids in 2009 and

had also, according to his statements, accompanied his wife to hospital, it was likely that he

had received further treatment at a later date. Furthermore, the antidepressant drug treatment

that the complainant is receiving in Switzerland could continue as part of an appropriate

assisted return involving talking therapy. He is not receiving regular psychiatric treatment

that is essential to his mental well-being, nor is he following a complex drug regimen, since

he has been prescribed only one antidepressant.

4 When invited by letter dated 26 March 2019 to provide updated information on the complainant’s

state of health, the complainant’s representative mainly reported that his medical situation remained

unchanged.

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Complaint

3.1

The complainant claims that his deportation to Sri Lanka would constitute a violation

of his rights under article 3 of the Convention. He claims that he risks being arrested upon

arrival at the airport or a few weeks later, then subjected to torture during his interrogation

and detention. He is even at risk of being abducted and killed by the Sri Lankan authorities

because of his Tamil origin, his coming from the north of the country and his long-term

membership of the Liberation Tigers of Tamil Eelam. His work in the intelligence and

recruitment section of this movement means that he has a specific profile. He claims to have

already faced persecution as he was arbitrarily arrested and detained, and tortured. He cites

as other important factors his flight from the country at a time when he was under strong

suspicion, the length of his stay abroad, his application for asylum in Switzerland, his

participation in demonstrations and the scars on his body.

3.2

Referring to the certificate concerning his colorectal surgery for haemorrhoids on

27 January 2009, the complainant states that, since haemorrhoids can be a consequence of

sexual violence, the document proving that he underwent colorectal surgery one month after

being subjected to torture and sexual violence is additional evidence that this torture took

place.

3.3

In addition, the medical reports presented during the proceedings show that the

complainant suffers from recurrent depressive disorder and post-traumatic stress disorder

with suicidal ideation and the risk that he would commit a suicidal act if he were to be

deported. From a medical perspective, it is inadvisable to deport him. Furthermore, if he were

to be deported, his access to the care and treatment that he needs would not be guaranteed

and his right, as a victim of torture, to rehabilitation would therefore not be respected.

3.4

Lastly, the complainant submits a report by the Swiss Refugee Council concerning

access to rehabilitative treatment for victims of torture in Sri Lanka. 5 According to the

complainant, this report shows that there is no sufficient and satisfactory rehabilitative

treatment for victims of torture in Sri Lanka and that victims put themselves at risk if they

report the torture they have suffered to doctors or psychologists. The report demonstrates that,

if the complainant is returned to Sri Lanka, he will not have access to the rehabilitative

treatment that he needs and to which he is entitled as a victim of torture, he will run the risk

of being reported to the authorities if he tells a doctor about the torture to which he was

subjected and he will once again be at risk of serious harm. It therefore serves to support the

claim that his return to Sri Lanka would violate articles 3, 14 and 16 of the Convention.

State party’s observations on the merits

4.1

On 22 April 2022, the State party submitted its observations on the merits, reiterating

the arguments presented by the Swiss asylum authorities. It acknowledges that the human

rights situation in Sri Lanka is worrying in many respects6 but points out that this situation

and the risk of being subjected to torture in the event of deportation were already thoroughly

assessed by the Federal Administrative Court in a landmark ruling.7 According to this ruling,

not all returnees with a real or supposed, present or past link to the Liberation Tigers of Tamil

Eelam necessarily risk persecution. Only persons suspected of reawakening ethnic conflict

face such a risk. The same applies to Sri Lankan nationals who have engaged in political

activities in exile. In the present case, the complainant has failed to plausibly argue that he

had attracted the attention of the Sri Lankan authorities.

4.2

The State party notes that the complainant has never been the subject of legal

proceedings in Sri Lanka and has never behaved in a way likely to attract negative attention

from the authorities. He has never had any problems with the authorities of his country and

was able to leave the country legally by air, which is the means of travel that involves the

most checks, after renewing his passport in May 2016. Moreover, the complainant’s political

activity in Switzerland, that is, simply participating in demonstrations against the Sri Lankan

5 Swiss Refugee Council, “Sri Lanka : accès aux traitements de réhabilitation pour les victimes de la

torture”, 1 September 2020.

6 See CAT/C/LKA/CO/5.

7 Federal Administrative Court, judgment E-1866/2015, 15 July 2016.

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authorities, is unlikely to attract the attention of the Sri Lankan security services. If his work

for the Liberation Tigers of Tamil Eelam had caught the authorities’ attention, he would not

have been released in exchange for a bribe and the search for him would have begun well

before 2016.

4.3

Furthermore, the complainant’s communication does not contain any information

demonstrating that if he were returned to Sri Lanka, he could be considered a threat to the

State by the Sri Lankan authorities. Although it is true that the complainant is of Tamil

ethnicity and has lived abroad for an extended period, he has failed to demonstrate that he

had attracted the attention of the Sri Lankan authorities. It can therefore be concluded that he

would not be at risk of treatment prohibited by article 3 of the Convention if he were to be

returned to Sri Lanka.

4.4

The State party notes, with regard to the surgery performed on 27 January 2009 to

treat haemorrhoids allegedly resulting from sexual abuse, that the complainant has in no way

established the cause of the haemorrhoids and has therefore not proven that they were the

result of torture. Moreover, the complainant has not provided any documents attesting to the

injuries that allegedly resulted from the acts of violence that he mentioned and led to his

hospitalization. His allegations that he was subjected to torture, including sexual abuse,

during his alleged detention in 2008 therefore cannot be considered to have been

substantiated.

4.5

In addition, there is nothing to suggest that the Sri Lankan security services had the

complainant in their sights prior to his departure for Switzerland. He had left the Liberation

Tigers of Tamil Eelam in 2005, before the end of the conflict, and had not been involved in

political activities in Sri Lanka since then. There were no indications that he might have

attracted the attention of the authorities. There is therefore no reason to believe that there is

a present and real risk that he would be subjected to torture if returned to Sri Lanka.

4.6

Lastly, with regard to the complainant’s state of health, the State party notes that the

fact that the mental health treatment available in the complainant’s country of origin or the

country from which he arrived might not meet Swiss standards is also not sufficient grounds

for a stay of removal.

Complainant’s comments on the State party’s observations

5.1

On 24 November 2022, 15 May 2023 and 18 July 2023, the complainant submitted

his comments, in which he contests the State party’s arguments and reiterates his allegations

and claims. He refers to several reports on the suppression of dissent in Sri Lanka to

demonstrate why he fears being returned to that country. He also submits a medical report

dated 6 September 2022 that confirms the diagnosis of recurrent depressive disorder,

moderate episode, post-traumatic stress disorder and alcohol-related mental and behavioural

disorders.

5.2

The complainant refers again to the current economic situation and humanitarian crisis

in Sri Lanka to support his claim that access to health care is not guaranteed. He also cites a

judgment handed down by the Federal Administrative Court on 27 October 2022 in a case

where the person was granted a residence permit because of his links with the Liberation

Tigers of Tamil Eelam.8 The complainant considers that as long as the Swiss authorities have

not called into question the plausibility of his statements concerning his work for the

Liberation Tigers of Tamil Eelam, his arrest and the torture to which he was subjected, he

qualifies as a refugee.

5.3

The complainant maintains that if the State party considered that the medical reports

submitted did not constitute sufficient proof of torture, it was obliged to carry out an impartial,

independent and thorough investigation. His allegations of sexual violence, in particular, are

credible given that it is widely known that law enforcement officers have committed sexual

violence against Tamils in Sri Lanka.

5.4

The complainant continues to participate in pro-Tamil demonstrations in front of the

Palais des Nations in Geneva several times a year. He argues that, although his political

8 Federal Administrative Court, Judgment D-98/2019.

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activity in Switzerland is not in itself sufficient to demonstrate the existence of a

well-founded fear of persecution in the event of return to Sri Lanka, it must be taken into

account in the assessment of all the factors that contribute to the risk of torture in the event

of return, not in isolation.

5.5

Lastly, referring to the case of K.R. v. Switzerland,9 in which the Committee found

that the removal of a Sri Lankan national would violate articles 3, 14 and 16 of the

Convention, the complainant asserts that, since he is still suffering from post-traumatic stress

disorder, his deportation would result in retraumatization, would be inhuman and would

constitute a violation of articles 3, 14 and 16 of the Convention.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

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.

6.2

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

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, nor has it contested the admissibility of the complaint.

6.3

In the absence of any other obstacle to the admissibility of the present communication,

the Committee proceeds with its consideration of the merits of the claims submitted by the

complainant under articles 3, 14 and 16 of the Convention.

Consideration of the merits

7.1

The Committee has considered the present communication in the light of all the

information made available to it by the parties, in accordance with article 22 (4) of the

Convention.

7.2

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

complainant to Sri Lanka would constitute a violation of 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 grounds for believing that he or she would be in danger of being subjected to

torture.

7.3

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. 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 this 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. Moreover, 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.10

7.4

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

risk of torture must be assessed on grounds that go beyond mere theory or suspicion. It recalls

9 CAT/C/76/D/1018/2020, paras. 6.12 and 6.13.

10 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.

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that, although the risk does not have to be shown to be “highly probable”, the burden of proof

generally falls on the complainant, who must present an arguable case establishing that he or

she faces a “foreseeable, real and personal” risk. 11 The Committee also recalls that, in

accordance with its general comment No. 4 (2017), 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.12

7.5

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

danger of facing treatment contrary to article 3 of the Convention if returned to Sri Lanka, as

he would risk detention, acts of torture and ill-treatment because of his perceived connections

to the Liberation Tigers of Tamil Eelam, particularly given the human rights situation in Sri

Lanka, his Tamil ethnicity and his absence from the country. The Committee also notes the

complainant’s assertions that he was detained, interrogated and tortured in December 2008

and that the Sri Lankan authorities have been looking for him since May 2016. Lastly, it notes

the complainant’s claim that his removal to Sri Lanka would expose him to retraumatization

and would prevent him from undergoing psychiatric treatment, in contravention of articles 14

and 16 of the Convention.

7.6

The Committee notes the State party’s reference to the contradictions that the asylum

authorities had identified in the complainant’s account and their conclusion that the

complainant had failed to plausibly argue that he had attracted the attention of the Sri Lankan

authorities. The Committee also notes the State party’s argument that the complainant’s

alleged activities for the Liberation Tigers of Tamil Eelam ended in 2005 without him

becoming a target of the Sri Lankan security services until May 2016. In the State party’s

view, the fact that the complainant was able, in May 2016, to renew his passport without

difficulty and use it to leave the country just as the Sri Lankan authorities were starting to

show an active interest in him reveals that he was not wanted by the authorities and does not

suggest that he faces a foreseeable and present risk of being subjected to treatment contrary

to the Convention in the event of return.

7.7

In particular, the Committee notes that the Swiss authorities have apparently not called

into question the credibility of the complainant’s claims regarding his detention. They have

pointed out, however, that the complainant has not provided any evidence of the injuries that

he allegedly sustained as a result of the violence to which he was subjected during his

detention, even though he was hospitalized immediately after his release. According to the

State party, his claims that he was subjected to torture, including sexual abuse, during his

alleged detention in 2008 therefore cannot be considered to have been substantiated.13

7.8

The Committee notes that even if it were to accept the claim that the complainant was

subjected to acts of torture and ill-treatment in the past, the question is whether he remains,

at present, at risk of torture in Sri Lanka in the event of his forcible return there.14 The

Committee also notes that, according to its jurisprudence, the onus is generally on the

complainant to make an arguable case.15 In the present case, the Committee is of the view

that the complainant has not provided credible information suggesting that the Sri Lankan

authorities are currently interested in him.

7.9

With respect to the complainant’s argument relating to the worsening of the human

rights situation in Sri Lanka, the Committee recalls that the occurrence of human rights

violations in the complainant’s country of origin is not, in itself, sufficient for it to conclude

that the complainant is personally at risk of being tortured there. The Committee notes that

the complainant had ample opportunity to provide the State Secretariat for Migration and the

11 See, for example, Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4; and A.R. v. Kingdom of the

Netherlands (CAT/C/31/D/203/2002), para. 7.3.

12 Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50.

13 K.R. v. Switzerland, para. 6.7.

14 N.K. v. Switzerland, para. 7.10.

15 See, for example, N.B.-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9; C.A.R.M. et al. v.

Canada (CAT/C/38/D/298/2006), para. 8.10; and M.A.K. v. Germany (CAT/C/32/D/214/2002),

para. 13.5.

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Federal Administrative Court with supporting evidence and more information about his

claims, as his asylum application was considered twice. However, it cannot be concluded on

the basis of the evidence provided that the complainant would personally be at risk of torture

or inhuman or degrading treatment if he returned to Sri Lanka.

8.

On the basis of the above, and in the light of the material before it, the Committee

considers that the complainant has not provided sufficient evidence to enable it to conclude

that his deportation to his country of origin would expose him to a real, foreseeable, personal

and present risk of being subjected to treatment contrary to articles 3, 14 and 16 of the

Convention.

9.

The Committee, acting under article 22 (7) of the Convention, concludes that the

return of the complainant to Sri Lanka would not constitute a breach of articles 3, 14 and 16

of the Convention by the State party.