CAT/C/81/D/1051/2021

GE.24-21500 (E) 181224 181224

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1051/2021*, **

Communication submitted by:

J.V. (represented by counsel, Daniel Taylor)

Alleged victim:

The complainant

State party:

Australia

Date of complaint:

24 January 2021 (initial submission)

Document references:

Decision taken pursuant to rule 115 of the

Committee’s rules of procedure, transmitted to

the State party on 29 January 2021 (not issued in

document form)

Date of adoption of decision:

8 November 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.

The complainant is J.V., a national of Sri Lanka born in 1985. At the time of

submission, his request for asylum in Australia 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.

Factual background

2.1

The complainant is of Tamil ethnicity. According to the complainant, in May 2009,

the army occupied the complainant’s family’s land and placed the family members in an

internally displaced persons camp. His relatives were released on 28 March 2010, but the

complainant remained in detention. He was tortured 1 and interrogated on suspicion of

involvement with the Liberation Tigers of Tamil Eelam. He escaped 15 days later.2

* 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.

1 No further details were provided.

2 No further details were provided.

United Nations

CAT/C/81/D/1051/2021

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

18 December 2024

Original: English

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2.2

The complainant travelled by bus to his home area but was arrested by members of

the Criminal Investigation Department because he was new to the area. He was interrogated

about his family and where he came from. The complainant was arrested a second time by a

Tamil paramilitary group working for the Criminal Investigation Department – the Karuna

faction. He was taken to their camp and tortured: his head was smashed against a wall and he

was beaten with electrical wires. The complainant was arrested a third time by members of

the Criminal Investigation Department at a playground. He was again interrogated and

tortured.3

2.3

In September 2010, the complainant went to Colombo to get a passport and travelled

to Thailand, where he stayed until his visa expired in April 2011. The complainant then

crossed the border into Malaysia illegally. He left Malaysia in March 2012 and travelled to

Indonesia and eventually arrived in Australia illegally, by boat, on 22 July 2012, where he

applied for a protection visa on 4 December 2012.

2.4

On 15 October 2013, the delegate of the Minister for Immigration and Border

Protection refused to grant the complainant a protection visa. The delegate accepted that the

complainant had been subjected to serious harm on at least two occasions, given that he had

consistently stated that he had been hit with electrical wires and had scars from having his

head forced against a wall. He also accepted that the complainant had been in an internally

displaced persons camp where he had been questioned about his involvement with the

Liberation Tigers of Tamil Eelam and where he had suffered some form of physical violence,

the worst being when his ear was injured when his head was forced against a wall. The

delegate further accepted that the Criminal Investigation Department and the Karuna faction

had spoken to the complainant three times after he had left the camp, that he had been hit

with electrical wires during one of those interrogations and might have been subjected to

some degree of violence during questioning, and that his family had possibly been

approached by the Sri Lankan authorities regarding his whereabouts.

2.5

The delegate doubted, however, that the complainant was still regarded as a person of

interest in Sri Lanka. He noted that the last time the complainant had been detained was

roughly July 2010. Since that time, the complainant had not been detained or harmed, despite

having lived in the area until September 2010, when he had departed for Colombo, applying

for a passport and a visa and leaving the country without being detained or accused of being

involved with the Liberation Tigers of Tamil Eelam. The delegate further considered that,

although the complainant may have been accused of being involved with the Liberation

Tigers of Tamil Eelam, it was highly likely that he would have been detained and interrogated,

rather than released after questioning multiple times, if he had remained seriously suspected

of significant involvement. In addition, even if the complainant had suffered serious harm at

the hands of the Karuna faction, it was highly unlikely that the group would have maintained

an interest in him if they were working as the Government’s enforcers and government

agencies had no interest in the complainant, given the passage of three years. Finally, given

that the complainant had never been held for a significant amount of time when being

questioned over suspected links to the Liberation Tigers of Tamil Eelam in 2010, the delegate

considered that the chance that military forces had any continuing interest in the complainant

as a potential member or supporter of the Liberation Tigers of Tamil Eelam in 2013 was

remote.

2.6

On 18 June 2015,4 the Refugee Review Tribunal5 confirmed the delegate’s refusal to

grant the protection visa. The Tribunal concluded that there were substantial inconsistencies

in the information provided in the statutory declaration by the complainant, in the interview

with the delegate and at the hearing before the Tribunal about what had happened when he

left the refugee camp in April 2010 and between the time that he left the refugee camp and

his arrival in Australia. The Tribunal noted that the complainant had made a new claim

regarding past links to the Liberation Tigers of Tamil Eelam in the form of assistance with

Celebration Day activities, including putting up decorations and chopping firewood, but did

3 No further details were provided.

4 The complainant, assisted by a lawyer, was heard on 30 March 2015. One of his cousins also gave

oral evidence.

5 Currently the Administrative Appeals Tribunal.

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not accept that claim because, it noted, the complainant had not made the claim in the

statutory declaration or during his interview with the delegate. The Tribunal considered that

if he had provided assistance to the Liberation Tigers of Tamil Eelam, he would have

provided that information sooner in the visa application process. Furthermore, the Tribunal

considered that the fact that the complainant had been held in an internally displaced persons

camp, rather than a rehabilitation camp for Liberation Tigers of Tamil Eelam cadres, made it

less likely that the complainant was suspected of being a Liberation Tigers of Tamil Eelam

member.

2.7

Given the inconsistencies and concerns with the complainant’s claims, the Tribunal

did not accept that the complainant had escaped without permission from the internally

displaced persons camp, that he had been arrested, detained or seriously harmed after leaving

the camp or that the authorities had looked for him thereafter, either before or after he left Sri

Lanka. It also did not accept that the complainant or his family were suspected of supporting

the Liberation Tigers of Tamil Eelam.

2.8

On 14 July 2015, the complainant filed an application in the Federal Circuit Court for

judicial review of the Administrative Appeals Tribunal decision, but the Federal Circuit

Court dismissed the appeal on 8 December 2016. The complainant appealed that dismissal to

the Federal Court of Australia, but the Federal Court dismissed that appeal on 12 March 2018.

The complainant then sought special leave to appeal to the High Court of Australia, but that

was refused on 14 June 2018.

2.9

On 4 October 2021, the complainant requested the Minister for Immigration,

Citizenship, Migrant Services and Multicultural Affairs to intervene in his case, invoking, in

particular, a new claim that he had been a Liberation Tigers of Tamil Eelam cadre during the

civil war. On 6 December 2022, the Department of Home Affairs determined that the

complainant’s claims did not meet the guidelines for ministerial intervention. The

complainant’s request for such intervention was therefore not referred to the Minister. With

respect to the complainant’s claim that he was a Liberation Tigers of Tamil Eelam member,

the Department considered country information against his individual circumstances to

assess that his involvement with the Liberation Tigers of Tamil Eelam had been in a low-level

non-combatant capacity: digging and building bunkers, cutting down trees, questioning

people at checkpoints and, on at least one occasion, helping to build an artillery position. The

Department contended that the fact that the complainant had never been prosecuted or sent

for rehabilitation on suspicion of being a Liberation Tigers of Tamil Eelam cadre, in spite of

his claim to have had numerous interactions with the Sri Lankan army, the Criminal

Investigations Department and pro-government Tamil militia groups, made it appear evident

that he had never held a profile of interest to the Sri Lankan authorities in the past. The

Department further assessed that there was no evidence to indicate that the complainant

would be prejudicially denied access to mental healthcare. A new request for ministerial

intervention, dated 7 December 2022, was dismissed on 9 February 2023.

Complaint

3.1

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

being tortured as a witness to crimes against humanity and as an undisclosed former

Liberation Tigers of Tamil Eelam member, and that his return would thus violate article 3 of

the Convention. The complainant contends that the fact that he was previously tortured in

order to induce him to confess his Liberation Tigers of Tamil Eelam involvement provides a

strong indication that he is likely to be tortured again if he is removed to Sri Lanka. He notes

further that the Sri Lankan authorities have come to his home inquiring as to his whereabouts.

3.2

The complainant explains that, because his head was smashed against the wall – a fact

that the State party accepts as true – he suffered a permanent 50 per cent loss of hearing in

his left ear6 and that he suffered and continues to suffer flashbacks and post-traumatic stress

disorder as a result and, because of those conditions, is suicidal and has made attempts on his

6 Audiologist report of 2 August 2018.

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life.7 He further contends that he has made three suicide attempts in Australia and, after the

third attempt, was placed in a psychiatric hospital for three days. He still suffers flashbacks

and post-traumatic stress disorder in relation to the torture, which, he contends, shows the

serious mental harm to which he was subjected.

3.3

The complainant states that he had actual involvement with the Liberation Tigers of

Tamil Eelam but did not disclose that information to the Australian authorities for fear of

being subject to an adverse assessment by the Australian Security Intelligence Organization,

which, at the time, was subjecting former cadres to adverse security assessments resulting in

indefinite detention. The fear of indefinite detention and deportation from Australia if he

disclosed his status as a former cadre explains why the complainant failed to disclose his

involvement to the Australian authorities when he applied for the protection visa in December

2012. He also feared the information being leaked or provided to the Government of Sri

Lanka. In support of those arguments, the complainant invokes reports of repeated breaches

of data held by the Australian authorities.

3.4

The complainant mentions that he was recruited by the Liberation Tigers of Tamil

Eelam in the most recent war and was involved in the fighting. The Sri Lankan authorities

suspected him of involvement with the Liberation Tigers of Tamil Eelam but had not, as yet,

subjected him to rehabilitation. He provides a statement from a former Liberation Tigers of

Tamil Eelam colleague, who confirmed that the complainant had been a member.

State party’s observations on admissibility and the merits

4.1

On 29 November 2021, the State party challenged the admissibility of the complaint,

arguing that some of the claims made by the complainant were inadmissible ratione materiae

because the risk that he might face persecution if returned to Sri Lanka did not meet the

threshold of 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 procedure because his claims have already been considered through comprehensive

domestic administrative and judicial processes.

4.2

With respect to the complainant’s credibility, the Refugee Review Tribunal

determined that the credibility of his claims about what had happened to him after he left the

refugee camp to be poor, noting significant inconsistencies and some implausibilities in his

claims. The State party acknowledges that complete accuracy is seldom to be expected by

victims of torture8 but says that that was, in fact, taken into consideration by the domestic

decision makers when they assessed the complainant’s claims.

4.3

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 of the claims made by the

complainant before the Committee, with the exception of new claims and evidence regarding

the decision-making of the Refugee Review Tribunal, his past harm in Sri Lanka, the extent

of his involvement with the Liberation Tigers of Tamil Eelam, his mental health and concerns

regarding breaches of data held by the Government of Australia. In respect of the claims

raised only before the Committee, the State party submits that: despite the complainant’s

previous treatment in Sri Lanka, there is no evidence that he is currently at risk of torture

should he be returned to Sri Lanka; that domestic decision makers took account of the impact

past trauma might have had on the complainant’s ability to recall past events when making

its findings; had the complainant been an active Liberation Tigers of Tamil Eelam cadre and

witnessed the disappearance of other cadres, it could be expected that that information would

have been disclosed at an earlier stage of the domestic process; and the complainant was not

affected by the data breach.

7 Letters written by a counsellor (10 October 2018), a general practitioner (30 July 2019), a mental

health nurse (4 August 2019) and a clinical psychologist (5 August 2019).

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

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

the merits

5.1

On 13 June and 7 December 2022 and 13 February 2023, the complainant submitted

his comments on the State party’s observations, accompanied by a medical report of 5

October 2021 and a medical report of 7 December 2022 concerning hospitalization due to

self-harm out of fear of refoulement to support his statement that he is struggling deeply with

his post-traumatic stress disorder and that any mistreatment upon removal to Sri Lanka could

kill him or cause his death and hence could amount to torture. He considers that the State

party’s rejection of his claims to have provided assistance to the Liberation Tigers of Tamil

Eelam during the war does not correlate with the State party’s acceptance that he was tortured

after the war on suspicion of having provided assistance to the Liberation Tigers of Tamil

Eelam. The complainant clarifies that bribery in the chaos after the war was endemic, and

that that is the only reasonable explanation for his being subjected to serious torture in

detention and then suddenly escaping from the camp without being diverted to rehabilitation.

5.2

The complainant considers that the fact that he was tortured in detention after the war

indicates that he is suspected of involvement with the Liberation Tigers of Tamil Eelam

during the armed conflict. That he escaped the camp indicates that he is at serious risk of

harm upon return as a person suspected of involvement who has not gone through

rehabilitation. The fact of torture is indicative of the serious adverse suspicion on the part of

the Sri Lankan authorities. While the State party has accepted that he was tortured, its

contention that that did not indicate adverse interest in the complainant cannot be accepted.

5.3

The complainant accordingly submits that, if he is returned to Sri Lanka, he will be

detained on suspicion of having provided material assistance to the Liberation Tigers of

Tamil Eelam during the war and of being unrehabilitated, and that he will be interrogated and

tortured. He faces a real risk of also being sent to rehabilitation for up to two years without

trial. The complainant recalls that the Government of Sri Lanka maintains sophisticated

monitoring of Tamils in the diaspora in connection with known or suspected roles in the

Liberation Tigers of Tamil Eelam and anti-Government diaspora activities. In addition,

therefore, to his torture by the Sri Lankan authorities itself being indicative of serious adverse

interest, the complainant engaged in Liberation Tigers of Tamil Eelam remembrance

activities at the 27 November Liberation Tigers of Tamil Eelam Mahveerar Naal Day events

in Australia on three occasions.

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

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.

6.3

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

complainant’s claims under article 3 on the basis that they are manifestly unfounded, given

that 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 he were to be

returned to Sri Lanka. The Committee considers, however, that the complainant has

sufficiently substantiated his claims for the purposes of admissibility, on the basis of article 3

of the Convention, regarding his risk of being subjected to torture and ill-treatment if returned

to Sri Lanka. Accordingly, it declares the communication admissible and proceeds with its

consideration of the merits.

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Consideration of the merits

7.1

The Committee has considered the 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 substantial 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 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. Moreover, although past

events may be relevant, the principal question before the Committee is whether the

complainant currently runs a risk of torture if returned to Sri Lanka.9

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.

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 (para. 38).10 The Committee also recalls that,

in accordance with the same general comment, it gives considerable weight to findings of

fact made by organs of the State party concerned but is not bound by such findings and instead

has the power, under article 22 (4) of the Convention, to make a free assessment of the

information available to it, taking into account all the circumstances relevant to each case

(para. 50).

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 connection

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

Lanka and his Tamil ethnicity. It also takes note of the complainant’s contention that he was

detained, interrogated and tortured and that the Sri Lankan authorities thereafter looked for

him.

7.6

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

authorities identified in the complainant’s account. The Committee further notes that the

Australian authorities accepted that the complainant had been beaten and tortured while being

held for questioning and that he had suffered serious harm in Sri Lanka on several occasions.

They have, however, contested his claims that his activities with the Liberation Tigers of

Tamil Eelam had led to his persecution by the Sri Lankan authorities thereafter and that he

continued to be of interest to the Sri Lankan authorities. In that sense, the Committee notes

the Australian authorities’ contention that, if the complainant were genuinely suspected of

some form of serious Liberation Tigers of Tamil Eelam involvement, he would not have been

released on multiple occasions after brief questioning. The Committee also notes the State

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

10 See, for example, Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4; and A.R. v. Netherlands

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

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party’s assertion that the complainant did not demonstrate that his diagnosed post-traumatic

stress disorder was a result of the grounds alleged.

7.7

With respect to the 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 and of 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 Australian asylum authorities with

supporting evidence and more information about his claims during the asylum proceedings.

The Committee further notes that, even accepting the claim that the complainant was

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

remains, at present, at risk of torture in Sri Lanka in the event of his forcible return.11

7.8

In the present case, the Committee is of the view that the complainant has not provided

sufficient credible information to establish that the Sri Lankan authorities are currently

interested in him. In that sense, it notes that there are no indications in the record that the Sri

Lankan authorities are currently searching for him or that his family is currently being

persecuted due to his or their past activities. The Committee also notes that the complainant

was given the opportunity to substantiate and clarify his claims before the domestic

authorities. Accordingly, on the basis of the evidence provided, it has not been possible to

confirm the complainant’s allegations or to determine the existence of a personal, foreseeable,

real and present risk of being subjected to torture in the event of his return to his country of

origin.12

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 article 3 of the Convention.

9.

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

deportation of the complainant to Sri Lanka would not constitute a violation by the State

party of article 3 of the Convention.

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

12 See, for example, M.K. v. Switzerland (CAT/C/60/D/662/2015), paras. 7.8 and 7.9; and D.R. v.

Switzerland (CAT/C/63/D/673/2015), paras. 7.8 and 7.9.