CAT/C/81/D/1010/2020

GE.24-20312 (E) 191124 191124

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1010/2020*, **

Communication submitted by:

L.S. (not represented by counsel)

Alleged victim:

The complainant

State party:

Australia

Date of complaint:

12 August 2019 (initial submission)

Document references:

Decision taken pursuant to rule 115 of the

Committee’s rules of procedure, transmitted to

the State party on 17 June 2020 (not issued in

document form)

Date of adoption of decision:

1 November 2024

Subject matter:

Deportation to Sri Lanka

Procedural issue:

Level of substantiation of claims

Substantive issue:

Risk of torture, if deported to country of origin

(non-refoulement)

Articles of the Convention:

2, 3 and 16

1.1

The complainant is L.S., a national of Sri Lanka born in 1980. At the time of the initial

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

deportation to Sri Lanka. He claims that the State party would violate his rights under article

3 of the Convention if it removed him to Sri Lanka. The State party has made the declaration

pursuant to article 22 (1) of the Convention, effective from 28 January 1993. The complainant

is not represented by counsel.

1.2

On 17 June 2020, the Committee, acting through its Rapporteur on new complaints

and interim measures, decided not to issue a request for interim measures under rule 114 of

the Committee’s rules of procedure.

Factual background

2.1

The complainant is an ethnic Tamil of the Hindu religion. In 2006, during the civil

war, his family moved from one village to live with his sister in another village but returned

in 2007. Officers of the Criminal Investigation Department took photographs of young people

returning to their homes in order to provide them with refugee identity documents. The

complainant obtained his passport in 2007.

* Adopted by the Committee at its eighty-first session (28 October–22 November 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 and Abderrazak Rouwane.

United Nations

CAT/C/81/D/1010/2020

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

19 November 2024

Original: English

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2.2

In 2006, a Buddhist monk attempted to take control of some land owned by the

complainant’s father. The complainant heard that the monk had formerly been a member of

the Criminal Investigation Department and continued to have contact with officers. The monk

allegedly invited the army to build a camp on the land, claiming it to be Buddhist land. The

army left after the complainant had provided documentary proof of the registration of the

land under his sister’s name. In 2008 and 2009, the monk made constant threats by phone to

the complainant and his family.1 The complainant complained to the police, but no action

was taken. In 2010, the complainant was taken by officers of the Criminal Investigation

Department for questioning. 2 After one of the complainant’s colleagues from the

non-governmental organization for which he worked spoke to the officers, the complainant

was released, and the Criminal Investigation Department never approached him again.

2.3

In 2012, officers of the Criminal Investigation Department sought to arrest the people

who had been photographed in 2007. Three hundred Tamil men were arrested, including

20 from the complainant’s village. He learned from the parents of those arrested that they

had been placed in camps and tortured for having lived in areas previously controlled by the

Liberation Tigers of Tamil Eelam (LTTE) and having received weapons training from LTTE.

The complainant complained to the Human Rights Commission of Sri Lanka in March 2012,

which did not result in any action. 3 Those arrested remained in detention, and many,

including five from his village, disappeared. The complainant became concerned, as he had

also lived in the LTTE-controlled area, had received first aid training conducted by LTTE in

April 2006 and had been photographed in 2007. He heard4 that he, too, had been identified,

and he thus fled to his sister’s house, where he stayed until May 2012, when he fled to

Australia.5

2.4

The complainant arrived in Australia illegally, by boat, in June 2012 and was detained

for six months. On 6 November 2012, he applied for a protection visa, which was refused by

the delegate of the Minister for Immigration and Border Protection on 15 July 2013 because

she was not fully satisfied as to the complainant’s credibility and thus did not accept that he

was of any interest to the authorities in Sri Lanka.

2.5

On 30 January 2015,6 the Refugee Review Tribunal7 confirmed the refusal. The

Tribunal accepted the complainant’s accounts of having been photographed in 2007 by the

Criminal Investigation Department and having been involved in a land dispute with a local

Buddhist monk who had made threats. However, it did not accept that the complainant had

been targeted by the Criminal Investigation Department or other authorities and that there

would be a real chance of harm arising from his conflict with the monk. The Tribunal noted

that there was no indication that being photographed by the police at that time – in order to

provide him with an identity card – had not been a simple, routine procedure.

2.6

The Refugee Review Tribunal also found not to be credible the complainant’s account

of having received weapons training from LTTE, because he mentioned this fact for the first

time during the hearing before the Tribunal, despite its obvious relevance to his alleged fear

of harm from the Criminal Investigation Department, this being the first of two reasons for

the Department’s alleged suspicion. As to the second reason for the Department’s alleged

suspicion, the Tribunal did not find it plausible that simply having lived in an

LTTE-controlled area – like very large numbers of people – had been cause for arrest in the

period in question. In addition, the complainant did not provide any evidence to explain how

he had known that he had been on the list of persons to be arrested by the Criminal

Investigation Department. For the Tribunal, the Criminal Investigation Department and other

1 No further details were provided.

2 No further details were provided.

3 A copy of this complaint, dated 20 March 2012, was produced before the Refugee Review Tribunal.

The complainant first declared that the complaint related to the land dispute but later declared that it

related to the arrest of the 300 men.

4 No details were provided as to the source.

5 During his interview with the Australian authorities, the complainant confirmed that he had never

been a member of LTTE and had never been associated with it.

6 A hearing was held via video link on 6 January 2015, and the Refugee Review Tribunal gave the

complainant time in which to submit further documents.

7 The Refugee Review Tribunal has since been replaced by the Administrative Appeals Tribunal.

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authorities would have had ample opportunity to locate and arrest the complainant during

this period, had they had any interest in doing so. However, the complainant had been able

to live freely in Sri Lanka for five or six months before leaving for Australia. Furthermore,

he had been able to obtain a passport in his own name in May 2007, that is, in the same year

in which he had been photographed, which was an indication that he had not been adversely

known to the authorities at that time. As to the land dispute, the Tribunal noted that nothing

indicated that the phone threats had been more than empty threats, since neither the

complainant nor his family had ever experienced actual harm at the hands of the monk. There

was also nothing to indicate that the monk had been linked to the Criminal Investigation

Department or that the threats had continued after 2009.

2.7

On 4 March 2015, the complainant appealed to the Federal Circuit Court of Australia,

which summarily dismissed his appeal on 2 April 2015. On 27 July 2015, the Federal Court

of Australia held that the Federal Circuit Court had erred in summarily dismissing the appeal

and remitted the case to the Federal Circuit Court. After re-examination, including an oral

hearing, the Federal Circuit Court dismissed the case on 28 March 2017 because the

complainant had not advanced any new claims that had not been previously examined. On

18 April 2017, the complainant appealed to the Federal Court of Australia, which upheld the

decision of the Federal Circuit Court on 15 March 2018. On 14 December 2018, the

complainant applied for special leave to appeal to the High Court of Australia, which

dismissed his application on 20 March 2019. Separately, he twice requested the Minister for

Immigration and Multicultural Affairs to intervene in his case,8 claiming for the first time

that, in Sri Lanka, he had acted as a “secret intelligence agent” for LTTE and that he had

since been positively identified by the Sri Lankan authorities as a member of LTTE, but his

applications were rejected on 11 September 2018 and 25 February 2019.

Complaint

3.1

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

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

violation of article 3 of the Convention. The complainant also invokes articles 2 and 16,

without providing any further detail.

3.2

The complainant fears harm from the Criminal Investigation Department and other

paramilitary authorities because of his Tamil ethnicity, his actual or perceived political

opinions,9 his family’s association with LTTE10 and the fact that he falls into the categories

of young Tamil men who have been, or are suspected to have been, active in LTTE and young

Tamil men who have escaped and sought asylum in a Western country.

3.3

The complainant fears serious harm from the Buddhist monk who threatened him over

the phone, allegedly using personal contacts in the Criminal Investigation Department to

exert pressure on the complainant. He also claims to be suffering from post-traumatic stress

disorder, for which there is no proper treatment in Sri Lanka. Lastly, he submits that the

Australian authorities have not taken appropriately into account the psychological and

physical consequences of his past exposure to the armed conflict, military occupation and

serious human rights violations.

State party’s observations on admissibility and the merits

4.1

In its observations of 16 January 2021, the State party challenges the admissibility of

the complaint, arguing that the claims made by the complainant are inadmissible ratione

materiae because the treatment described in his allegations does not meet the threshold for

torture under article 1 of the Convention. It also submits that the complainant’s claims are

manifestly unfounded within the meaning of rule 113 (b) of the Committee’s rules of

8 The Minister’s guidelines set out the circumstances in which the Minister may wish to consider

exercising the ministerial intervention power under section 48B of the Migration Act. Notably, the

Minister may wish to consider the section 48B public interest power where there are exceptional

circumstances that justify considering new information or where significant changes in circumstances

have occurred subsequent to a decision to refuse a protection visa.

9 No further details were provided.

10 No details were provided as to the alleged association of his family with LTTE.

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procedure, because his claims have already been considered through comprehensive

domestic administrative and judicial processes.

4.2

On the merits, the State party recalls in detail the decisions issued at the domestic

level. It submits that the domestic authorities have considered all the claims made by the

complainant before the Committee, with the exception of claims based on updated country

information and claims in relation to his mental health, which were raised for the first time

in his submissions to the Committee. In particular, the State party notes that the complainant

has not provided any evidence to suggest that he has sought mental health treatment in

Australia; that he has not previously raised claims in relation to his mental health in the

domestic proceedings or in his requests for ministerial intervention; and that there is no

evidence that he would be deliberately denied any medical treatment that he requires upon

return to Sri Lanka.

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

the merits

5.

On 22 September 2021, the complainant submitted his comments on the State party’s

observations. In particular, he contested the domestic decisions and provided an update on

the human rights situation in Sri Lanka.

State party’s additional observations

6.

On 13 February 2024, the State party provided additional observations. As to the

country information, the State party notes that it is general in nature. The State party also

notes that the complainant has not established the existence of additional grounds to show

that he would personally be at a foreseeable and real risk of torture if returned to Sri Lanka.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

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.

7.2

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 contested that the complainant has exhausted all available domestic

remedies. The Committee therefore finds that it is not precluded from considering the

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

7.3

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

admissibility of the communication, stating that it is manifestly unfounded and thus

inadmissible pursuant to article 22 (2) of the Convention and rule 113 (b) of the Committee’s

rules of procedure. The Committee notes the State party’s argument that the evidence

produced has already been examined by the domestic authorities. The Committee recalls that

it is for the courts of the States parties to the Convention, and not for the Committee, to

evaluate the facts and evidence in a particular case, unless it can be ascertained that the

manner in which such facts and evidence were evaluated was clearly arbitrary or amounted

to a denial of justice.11 The Committee gives considerable weight to findings of fact made by

organs of the State party concerned;12 however, it is not bound by such findings. It follows

that the Committee will make a free assessment of the information available to it in

11 G.K. v. Switzerland (CAT/C/30/D/219/2002), para. 6.12; S.K. v. Australia (CAT/C/73/D/968/2019),

para. 12.5; and Z.S. v. Georgia (CAT/C/70/D/915/2019), para. 7.4.

12 For example, 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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accordance with article 22 (4) of the Convention, taking into account all the circumstances

relevant to each case.13

7.4

In the present case, the Committee observes that the State party’s immigration and

judicial authorities thoroughly examined the facts and evidence presented by the complainant

and considered that some aspects of his account were not credible; that he had not

demonstrated that he had been targeted by the Criminal Investigation Department or other

authorities or that there would be a real chance of harm arising from his conflict with the

monk; and that he had not provided any evidence to explain how he had known that he had

been on the list of persons to be arrested by the Criminal Investigation Department. On that

basis, the authorities concluded that the complainant had not established the existence of

substantial grounds to show that he would face a foreseeable, real and personal risk of being

tortured if returned to Sri Lanka.

7.5

The Committee also notes that the complainant contests the assessment of his

credibility made by the authorities of the State party. However, the Committee observes that

the complainant provided no documentation or other evidence to substantiate his assertions

and that the authorities of the State party found, after a thorough assessment of all the facts

and evidence presented at different levels of jurisdiction, that the complainant had not

provided sufficient evidence that he would run a foreseeable, real and personal risk of being

tortured if returned to Sri Lanka. Consequently, the Committee finds that the complainant

has not established that the domestic evaluation of the facts and evidence concerning his

alleged risk of treatment contrary to the Convention upon return to Sri Lanka suffered from

any defects.14

7.6

The Committee recalls its earlier decisions in which it found claims to be manifestly

unfounded where the author of a communication failed to submit substantiated arguments

showing that the danger of being subjected to torture was foreseeable, present, personal and

real. The Committee also recalls that, for a claim to be admissible under article 22 of the

Convention and rule 113 (b) of its rules of procedure, it must not be manifestly unfounded.

In the light of the above, and in the absence of any further relevant information, the

Committee concludes that the complainant has failed to substantiate his claims sufficiently

for the purpose of admissibility.15

8.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 22 (2) of the Convention;

(b)

That the present decision shall be communicated to the complainant and to the

State party.

13 For example, I.E. v. Switzerland (CAT/C/62/D/683/2015), para. 7.4. See also Committee against

Torture, general comment No. 4 (2017), para. 50.

14 S.K. v. Australia, para. 12.5.

15 Ibid., para. 12.6.