United Nations cat/C/60/D/648/2015



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United Nations

CAT/C/60/D/648/2015



Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment


Advance unedited version

Distr.: General

6 June 2017


Original: English

Committee against Torture

Communication No. 648/2015

Decision adopted by the Committee at its sixtieth session (18 April – 12 May 2017)*


Communication submitted by:

S.S. (represented by counsel, Rasan T. Selliah )

Alleged victim:

The complainant

State party:

Australia

Date of complaint:

14 October 2014 (initial submission)

Date of adoption of decision:


10 May 2017

Subject matter:

Deportation to Sri Lanka

Substantive issues:

Non-refoulement

Procedural issues:

Admissibility - manifestly ill-founded

Articles of the Convention:

3, and 22


Background
1.1 The complainant is Mr. S. S., a Sri Lankan national, born in 1980. He claims that if it proceeds with his deportation to Sri Lanka, Australia would violate article 3 of the Convention. The State party made the declaration under article 22 of the Convention on 28 January 1993. The complainant is represented by counsel, Mr Rasan Selliah.

1.2 On 7 January 2015, in application of rule 114, paragraph 1, of its rules of procedure, the Committee requested the State party to refrain from deporting the complainant to Sri Lanka pending the consideration of his case. On 27 July 2016, the State party requested the Committee to lift its request for interim measures. On 21 September 2016, the Committee rejected this request.


The facts as presented by the complainant

2.1 The complainant is Tamil of Hindu religion. He was born in Kalmunai in the Eastern province of Sri Lanka. He worked in the jewellery business in Colombo. In 2006, due to the escalation of political troubles and increase in criminal activities, including abduction and extortion of money from Tamils, he attempted to obtain a visa for Australia through a friend who was an “agent”. He was introduced to a “Minister”. Papers were signed and handed over to the Minister.

2.2 Five days later, the complainant was arrested by the Criminal Investigation Department (CID) and detained for five days on the fourth floor1 of their headquarters, where he was beaten and tortured. The officers wanted to know why the complainant had tried to leave the country and if he was a “Pirapaharan” or “Karuna” Tiger.2 The CID alleged that they had proof that he had provided financial support to the LTTE. The complainant explains that he had given money to the group, under the threat of his family being harmed. The CID tried to force him to confess to being a member of the LTTE, which he refused to do. On 2 November 2006, the complainant was brought before the Chief Magistrate’s Court and was held on remand in the Welikade prison. Along with several others, he was charged with being a member of a terrorist group which had planned destructive activities.3

2.3 The complainant’s parents submitted business registration and other documents and, on an unspecified date, the Court ordered the complainant’s release on the condition that he report to the CID each month, for a period of six months. The CID extended the reporting period beyond six months, threatening to detain the complainant if he did not continue to report to them. On each visit, police officers forced him to pay bribes. After this second six-month period had ended, the officer in charge of his case insisted that he continue reporting under threat of detention. He did not dare to complain to higher authorities for fear of further persecution. Unable to bear this harassment, the complainant sold his business and moved back to Kalmunai, where he worked for his brother’s jewellery business.

2.4 On 7 July 2008, the complainant was abducted from his home in Kalmunai by the Karuna Group4 of Tamil Makkal Viduthalai Puligal (TMVP), a pro-government group. He remained in a camp for three months. The group pressured him to join their cause and ill-treated5 him as he refused. The TMVP said that they had proof that the complainant had contributed to the LTTE and that he had to join them or give them money. When the complainant’s wife went to the police for help, she was told to provide them with sexual favours if she wished her husband to be released. She later visited her husband at the camp, accompanied by village elders. She was told by guards there not to go to the police again. The complainant’s wife was also warned that if she revealed information about the camp to others, her husband would be killed.

2.5 After three months in the camp, during which time he was forced to undergo hard manual labour6 and regular beatings, the complainant escaped. He did not return home and arranged for his identity papers to be brought to him, after which he went to Colombo and obtained a passport through an agent7. He eventually arrived in East Timor, by way of Singapore8 and Malaysia, in December 2008. The complainant was questioned by the East Timorese authorities.9 The interpreter was a Sri Lankan policeman and the complainant still fears that this policeman will have reported him to Sri Lankan authorities. The complainant worked in East Timor illegally for seven months. Thereafter, he walked through the jungle for eight hours to Kupang and then travelled to Jakarta, Indonesia by vehicle.

2.6 On 10 March 2010, he boarded a boat to Australia and arrived at Christmas Island on 20 March 2010. Upon arrival, the complainant learned that his parents had been visited by CID officers, who had warned them to inform them immediately if they became aware of the complainant’s whereabouts.

2.7 The complainant applied to the Department of Immigration and Border Protection10 for a protection visa. His application was rejected by a delegate of the Minister for Immigration on 17 August 2010. The delegate accepted the complainant’s claims with regard to the incidents in 2006 and July 2008, but found that he did not meet the definition of a refugee as set out in article 1A of the 1951 Refugee Convention.

2.8 The complainant appealed the decision via the Independent Merits Review procedure (IMR), but his appeal was rejected on 13 May 2011. The complainant asserts that the refusal to reverse the decision of 17 August 2010 was because his claim to have been detained and tortured by CID was found to lack credibility. The complainant states that at the time he was not able to provide proof of this fact. He applied for judicial review of the first IMR to the Federal Magistrates Court, which was rejected on 2 November 2011.

2.9 He appealed to the Federal Court of Australia which found in his favour on 2 March 2012. As a result, his claims were reassessed in a second IMR. This time, he provided documentary evidence in the form of a certified copy (in Sinhalese) of a report filed by the CID and Terrorist Investigation Division (TID) with the Chief Magistrate’s Court of Colombo. This shows that 39 suspects, who were alleged to have assisted the LTTE, had been arrested, kept in detention by the TID and then brought before the Chief Magistrate’s Court of Colombo under the relevant Emergency Regulations. In the report, the complainant’s name is number 15 but he claims that it was misspelt in Sinhala. Therefore, the reviewer in the second IMR decided that this document did not relate to the complainant and rejected his application. The complainant contends that the misspelling of his name was likely borne of a total disregard by police for Tamils or a typographical error.

2.10 The complainant later obtained from the Registrar of the Magistrate’s Court of Kalmunai11 a document certifying that he was charged with aiding and abetting a terrorist group and that his name had been misspelt in the report. The complainant also obtained a letter from a member of the Sri Lankan Parliament for the Batticaloa District, dated 27 August 2014, reiterating his claims.

2.11 The complainant applied to the Federal Circuit Court for judicial review of the second IMR on the basis of this new evidence. His application was rejected on 12 July 2013. His application to have the decision judicially reviewed was dismissed on 4 December 2013. His application for special leave to appeal to the High Court was also rejected on 15 August 2014. On 2 September 2014, he applied for a waiver under section 48B of the Migration Act 1998 to allow him to lodge a new application for a protection visa. He also requested Ministerial Intervention with a request to issue a favourable decision on humanitarian and compassionate grounds and exceptional circumstances. On 10 November 2014, the complainant’s application was rejected. The complainant maintains that he has thus exhausted all available domestic remedies.

2.12 The complainant’s wife and daughter continue to live in Sri Lanka under fear of harassment owing to the complainant being sought by the authorities and pro-government paramilitaries.12


The complaint

3. The complainant claims that his deportation to Sri Lanka would violate his rights under article 3 of the Convention. He states that, since he is a Tamil man from an area formerly known for LTTE activities, is suspected of having links with the LTTE, who had already been tortured by the CID and the Karuna Group in the past and accused in court of terrorist activities and having escaped from the detention of a pro-government militia, upon return to Sri Lanka he faces torture by the authorities which are still looking for suspected anti-government elements. Therefore, in returning him to Sri Lanka, Australia would violate its obligations under article 3 of the Convention.


State party observations on admissibility and merits

4.1 By note verbale of 16 October 2015, the State party provided its observations on the admissibility and merits of the complainant’s communication.

4.2 The State party submits that the complainant’s claims are unsubstantiated and inadmissible pursuant to Rule 113 (b) of the Committee’s Rules of Procedure on the grounds that they are manifestly unfounded as he has failed to establish a prima facie case. The State party notes that the complainant’s claims were thoroughly considered by a series of domestic decision makers, including an independent merits review and judicial review by both the Federal Circuit Court and the Full Federal Court of Australia. These domestic processes determined that the complainant’s claims were not credible and did not engage the State party’s obligations. The complainant’s claims were also considered under complementary protection provisions.

4.3 The State party asserts that the complainant has not provided any relevant new evidence in his submission to the Committee that has not already been considered through robust and comprehensive domestic administrative and judicial processes. It refers to the Committee’s General Comment No. 1 where it is stated that the Committee is not an appellate or judicial body and it gives considerable weight to findings of fact made by organs of a State party.

4.4 Regarding the complainant’s reliance on general country information, the State party asserts that this does not prima facie establish a personal risk of torture. In concluding that there are not substantial grounds for believing that the complainant is at personal risk of torture in Sri Lanka, domestic decision makers have already considered extensive country information, including that provided by the State party’s Department of Foreign Affairs and Trade and the United Nations High Commissioner for Refugees.

4.5 The State party refers to the initial decision relating to the complainant’s refugee status. The Refugee Status Assessment (RSA) Officer was not satisfied that the complainant was a reliable witness. In particular, he did not accept the complainant’s alleged encounter with a Sri Lankan police officer during his stay in East Timor. The complainant did not mention this encounter during his entry interview or in his written RSA submissions. Further, given the availability of other Tamil interpreters, the RSA officer did not consider it plausible that a Sri Lankan police officer would be required to act as an interpreter. Moreover, it was not considered plausible that the complainant would take the risk of criticising the Sri Lankan government in front of a police officer. The RSA officer did accept the complainant’s claims relating to his alleged detention by the CID in 2006 and his kidnapping in 2008. Nonetheless, the Officer did not consider that these incidents gave rise to refugee protection obligations.

4.6 Regarding the first Independent Merits Review (IMR), the State party explains that all claims for protection were considered afresh. The complainant was able to make written submissions and attend an interview with his migration agent and with the assistance of a Tamil interpreter. On 13 May 2011, after an assessment of all available evidence the independent reviewer (the Reviewer) recommended that the complainant not be recognized as a person to whom the State party owes protection under the Convention Relating to the Status of Refugees.

4.7 The State party adds that the Reviewer had significant concerns over the complainant’s credibility. In relation to his detention by the CID in 2006, the Reviewer found it far-fetched that the complainant, a goldsmith seeking to apply for a tourist visa for Australia, would be suspected of being an LTTE member or agent and saw no other plausible reason for his detention. The Reviewer noted inconsistencies in the reasons given by the complainant for leaving Colombo and found his account of the kidnapping by the Karuna group to be similarly inconsistent. Of particular concern was the fact that the complainant stated that the operators of the camp ‘pressed’ him to join their group but also claimed that they did not tell him the name of the group during the three months he was held there. He also provided two different explanations as to how he guessed the identity of the group.13

4.8 The Reviewer found lacking in credibility the fact that upon being deported from Singapore to Sri Lanka, the complainant managed to avoid adverse attention from Sri Lankan authorities by having his agent friend pay immigration officials. The Reviewer also believed the claim regarding the ex-police officer interpreter to lack factual merit. Further, the complainant was found not to meet the criteria for refugee status on account of his status as a failed asylum seeker.

4.9 Before the Federal Magistrates Court the Reviewer was found not have made any error of law. In the complainant’s appeal of this decision to the Federal Court of Australia he cited grounds of a lack of procedural fairness, which was denied. The second ground of appeal, that the Reviewer had failed to specifically consider the complainant’s claim that he fell within a particular social group,14 was allowed. While the Reviewer had considered the complainant’s claim of past harm he had not considered this more general risk. The Federal Court of Australia remitted the complainant’s case to the Independent Merits Reviewer for reassessment.

4.10 In the second IMR the complainant was able to make written submissions and attend an interview. Again it was recommended that the complainant not be recognized as an individual to whom the State party owed protection obligations. The Reviewer did not find the complainant to be a reliable, credible or truthful witness. In particular, the Reviewer took into account the complainant’s submission that his ability to present his claims and evidence had been hindered by a range of factors including interpretation services and the psychological effects of his perilous journey, along with the guidance given by the UNHCR handbook on procedures and criteria for determining refugee status, (advising that no undue weight should be placed on a degree of confusion and omission in accounts given at various stages of the Refugee Status Assessment), a torture and trauma report which assessed the complainant’s cognitive functioning as normal, the complainant’s interviews and written submissions in which no reference was made to errors by interpreters and finally the complainant’s presentation at the interview for the second IMR in which he was articulate, demonstrated a clear understanding and was able to participate effectively. The Reviewer did not give any weight to, or even raise, the inconsistencies15 in the entry interview and subsequent transmissions in light of the UNHCR’s advice. Nonetheless, the Reviewer considered that the complainant tailored his evidence to suit his needs and inconsistencies remained regarding central issues while many key claims remained implausible and inconsistent.

4.11 The Reviewer did not accept the complainant’s claim that he was arrested by the CID on suspicion of being an LTTE supporter after applying for Australian visa. The complainant’s changing evidence about how he came to apply for a visa, with one story being repeated three times in previous interviews and then changing is not consistent with his claim that previous decision makers had misunderstood his evidence. His revised version of events contradicted his claim that a member of staff at the High Commission must have been a CID informant. His evidence was also inconsistent as to whether he knew the ‘Minister’ who had assisted him with his visa application. Taken together, these inconsistencies, along with his business profile, did not support the complainant’s claim that his application for a visa resulted in his arrest by CID on suspicion on LTTE links.

4.12 In relation to the extract of the police report filed with the Court in Colombo, the State party relates that the Reviewer did not consider that the report outweighed the problems with the complainant’s own evidence. The complainant pointed out the part which he claimed related to him but stated that his name had been misspelt. A receipt was also provided, which the complainant stated was proof of having paid for an extract of the court record. This record and receipt had not previously been provided, despite the receipt being dated 11 June 2011. The complainant stated that this was because his agent had not asked for it. The Reviewer did not consider the documents to relate to the complainant and consequently gave the documents no weight.

4.13 The complainant also claimed for the first time during this interview that he had provided financial support to the LTTE. When asked why he hadn’t recounted this fact at an earlier stage, he explained that he had been advised not to by others at the detention centre. However the Reviewer noted that he had had access to a migration agent throughout all processes. The Reviewer did not accept that the complainant was abducted by the Karuna group, or any other paramilitary group, owing to inconsistencies in his evidence about the method by which he was abducted, who kidnapped him, how he had escaped and his departure from Sri Lanka. Regarding inconsistences in his evidence as to who kidnapped him, the complainant had stated that it was hard to distinguish between all these groups.16 The Reviewer did not accept that a group, which tried to indoctrinate the complainant over a three month period, could not be identified by him. The complainant also stated that his statement that he had been kidnapped by the LTTE was a mistake by the first interpreter. He insisted that he had tried to correct this misunderstanding at the next interview. When it was pointed out that this was not reflected in the record of that interview, the complainant stated that he had been warned by other detainees not to reveal the identity of the group as it would get him into trouble. This explanation was not accepted.

4.14 As to how he escaped the camp, the complainant’s explanation was found to be implausible and inconsistent,17 as was where he went afterwards18 and the time at which he obtained his passport.19 When the conflicting evidence was put to the complainant he denied his earlier evidence, which was on record. Finally, the Reviewer found that the complainant did not face a risk of harm on his return owing to his status as a failed asylum seeker. After reviewing his evidence, the Reviewer was satisfied that the complainant did not suffer any difficulties upon re-entering when deported from Singapore to Sri Lanka in 2008. The Reviewer noted country information indicating that returnees are unlikely to face significant problems in the absence of a criminal or LTTE profile. The Reviewer accepted that the complainant would be subject to routine screening at the airport but that this would not amount to significant harm.

4.15 On 4 July 2012, the complainant appealed the decision of the Reviewer on three grounds, all of which related to the rejection of the complainant’s claim that he was detained by CID in 2006. The Federal Court rejected the submission finding, ultimately, that the Reviewer had not failed to consider the complainant’s alleged detention by the CID in 2006. The complainant claimed he had not been given the opportunity to comment on whether the court documents, if authentic, related to him. The Court, in dismissing the claim, noted that the complainant had had the opportunity to attend a hearing and furnish additional facts to establish that his name was misspelt on the court’s record. He had failed to do so. In any case there was other material that raised doubts about whether he was ever detained by the CID. The third ground of appeal related to the Reviewer’s alleged failure to accord proper weight to the court documents as evidence that corroborated the complainant’s claims. In relation to that ground, it was found by the Court that it was open to the Reviewer, in light of her concerns about credibility, to find that the documents did not relate to the complainant and therefore give them no weight as corroborating evidence.

4.16 The State party adds that the complainant’s appeal of 2 August 2013 was dismissed by the Federal Court on 4 December 2013. The appeal was based on the claim that the Reviewer had denied the complainant procedural fairness by failing to advise him that she might find the report filed by the police with a court in Colombo was genuine but did not relate to the complainant. Consequently, it was claimed that the Reviewer had failed to provide the complainant with an opportunity to provide further comment on that issue.

4.17 The Federal Court accepted that the critical issue on which the Reviewer’s decision was likely to turn was whether the complainant was arrested and detained by CID and in turn that the Reviewer was obliged to make the complainant aware of this issue. In the Court’s view, the complainant had clearly been made aware of this and specifically, was made aware that an issue that the Reviewer might decide was whether the court document related to him. The complainant’s solicitor and migration agent were aware that the misspelling of the complainant’s name was problematic. He was given the opportunity, which he availed himself of, to make written submissions thereon. The written submissions were considered by the Reviewer and the complainant’s representative was also invited to provide additional comment. The Reviewer’s conclusion on the issue flowed from ‘an obvious and natural evaluation’ of the document and the inherent and apparent weakness of that document. As such the court was not persuaded that there was any lack of procedural fairness. In so finding, the Court noted that the complainant had not argued on appeal that it was not open to the Reviewer to give little or no weight to the court document in light of the problems identified with the complainant’s evidence.

4.18 The State party reiterated that, on 15 August 2014, the High Court of Australia dismissed the complainant’s application for special leave to appeal the decision of the full Federal Court of Australia as he had not identified any question of principle that would warrant a grant of special leave.

4.19 On 2 September 2014, the complainant requested a Ministerial Intervention under sections 417 and 48B of the Migration Act 1958, to permit him apply further for a protection visa, which the Minister may do if this is in the public interest. The State party set out that a request for intervention should be referred to the Minister for consideration if it contains additional information which is likely to enhance the person’s chances of making a successful claim for protection. Consequently the claims made by the complainant were again assessed in full by a Delegate of the Assistant Minister for Immigration and Border Protection. The Delegate found that no further information provided in the complainant’s request indicated that he had an enhanced chance of making a successful protection visa application. The State party stated that the complainant had provided, for the first time, a letter from the Registrar of a Magistrates Court dated 1 September 2014 attesting that the complainant’s name was misspelt in the court extract. The complainant also provided a letter from an MP of Batticaloa District reiterating the complainant’s claims of persecution by the CID and Karuna Group. The Delegate considered that, in light of the problems with the complainant’s credibility, those documents should be given no weight by the Department. The delegate did not refer the case to the Minister for consideration since none of the information provided indicated a heightened chance of making a successful application for a Protection Visa.

4.20 The State party asserts that for the reasons set out above, the complainant’s claims are inadmissible and/or without merit.


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