CAT/C/56/D/591/2014
4.19 Finally, with regard to the complainant’s claim that because he is a failed asylum
seeker, he will be subjected to torture and killed if returned to Sri Lanka, the State party
notes that the complainant has not provided any country information in support of that
claim. In that regard, the State party acknowledges that article 3 (2) of the Convention
requires all relevant considerations to be taken into account when determining whether
article 3 (1) is engaged, including the existence in the State concerned of a “consistent
pattern of gross, flagrant or mass violations of human rights”. However, the State party
notes that the existence of a general risk of violence does not constitute sufficient grounds
for determining that a particular person would be in danger of being subjected to torture
upon return to that country. Additional grounds must exist to show that the individual
concerned would be personally at risk of torture.11 As submitted above, the State party
maintains that the complainant has not established the existence of additional grounds to
show that he is at a foreseeable, real and personal risk of torture if returned to Sri Lanka.
4.20 In addition, the State party submits that extensive country information on Sri
Lanka and the return of failed asylum seekers specifically was also carefully considered
throughout the domestic processes. In particular, during the complainant’s protection
visa application review, material before the authorities included country information
from the Department of Foreign Affairs and Trade and non-governmental organizations
(such as Amnesty International) as well as guidance from the Office of the United
Nations High Commissioner for Refugees’ (UNHCR) Handbook.
4.21 Furthermore, the Refugee Review Tribunal had considered a wide range of
country information pertaining to Sri Lanka, including information specifically relating
to failed asylum seekers returning to Sri Lanka. The Tribunal accepted that, since failed
asylum seekers would have generally left Sri Lanka illegally, they would be dealt with
under the relevant laws of Sri Lanka, which are of general application. However, the
Tribunal did not accept that laws of general application would be applied to the
complainant discriminatorily because he is a Tamil, nor that he would be subject to
significant harm for those reasons.
4.22 Moreover, during the assessments of the complainant’s requests for ministerial
intervention, the country information provided by the Department of Foreign Affairs and
Trade was considered, and it was verified that, while failed asylum seekers are detained
on return to Sri Lanka under laws relating to leaving the country illegally, all persons are
granted bail if a family member stands as guarantor, with no discrimination on the basis
of ethnicity or religion. It was noted that the complainant has family members — his
mother and three sisters — residing in Sri Lanka who can assist him, and there is no
information to indicate that he would not be granted bail or that he would be
discriminated against or tortured because he is a failed asylum seeker and/or Tamil.
Complainant’s comments on the State party’s observations
5.1
On 16 March 2015, the complainant submitted his comments on the State party’s
observations, noting that he had stated to the Refugee Review Tribunal that, inter alia, he
was born in Periya porathivu, Batticaloa district, Sri Lanka, an area that was controlled
by the Liberation Tigers of Tamil Eelam (LTTE), he was not involved in the fighting with
the Sri Lankan armed forces, but that he and his family “rendered moral support and
financial support to the LTTE in their arms struggle”. After the war ended, many LTTE
cadres left Sri Lanka from the international airport in Colombo and, since his and his
family’s residence was in Negombo, which is near the airport, many cadres stayed in
their house. The complainant reiterates that he hosted some LTTE members in their
11
8
See G.R.B. v. Sweden, para. 6.3.