CAT/C/61/D/614/2014
not been able to obtain any confirmation from the priest involved. Instead, the complainant
produced a statutory declaration from a justice of the peace, whose evidence seemed to
indicate that he had only remained in the church for approximately a year, whereas he had
previously indicated that he had gone into hiding for over two years. Moreover, the
complainant did not leave the church in which he had sought refuge because of the Sri
Lanka Army, which would look for him, but because he missed his family. Therefore, the
letter of attestation in that regard was perceived as untrue. Furthermore, the Independent
Protection Assessment Office’s decision raised concerns about the applicant’s academic
history, as during the period of alleged hiding at the church, he was sitting for examinations
at school. There was also a considerable shift in the complainant’s account of being
abducted. His abduction was perceived as troubling, since the school never reported the
matter or spoke to the complainant or his parents about it. Despite the alleged violence and
rape, he had no injuries and did not seek medical treatment upon his release. Consequently,
the assessor did not accept his claims about being harassed between 2008 and 2011 and
being abducted in 2011. In that regard, the Independent Protection Assessment Office’s
decision also stated that the reviewer had not been presented with any evidence of the
alleged persecution of those who had participated in LTTE cultural activities. Hence, the
reviewer did not find it credible that the complainant did not mention in the first interview
the severe punishments that other participants had experienced, which appeared to be
inconsistent with what he claimed had happened to him. Given the number of people
involved, the reviewer did not accept that the complainant’s participation in the play three
years earlier would lead to an interest in him by the Sri Lanka Army. As regards the
complementary protection findings, the assessor concluded, relying on relevant country
information, that the complainant would not face persecution or irreparable harm on the
basis of his Tamil ethnicity, of being a member of a particular social group of young men in
Sri Lanka, or of imputed political opinions as a supporter of LTTE. The complainant has
not substantiated the idea that he would face economic marginalization or that the alleged
political marginalization would amount to significant harm.
4.6
On 20 February 2013, the complainant sought judicial review of the Independent
Protection Assessment Office’s decision by the Federal Circuit Court, claiming legal error.
On 23 April 2014, the Federal Circuit Court dismissed his application for judicial review as
it did not find any legal error in the Independent Protection Assessment Office’s
determination and he had been accorded procedural fairness. The complainant was
physically present at the Federal Circuit Court hearing and made oral submissions. He told
the court that he was unable to provide evidence of the many problems he had had in Sri
Lanka because his abductor was not going to admit them. However, the Federal Circuit
Court held that the Independent Protection Assessment Office’s conclusions that the story
of abduction was unlikely were not based on the failure to produce evidence but on the set
of circumstances, including the inconsistencies as to when exactly the complainant learned
of his brother’s problems, and why that issue had not been raised during the first interviews.
4.7
Following the decision of the Federal Circuit Court, the complainant was informed
that he was scheduled for removal to Sri Lanka. On 13 June 2014, a final pre-removal
assessment was undertaken by the Department of Immigration and Border Protection,
confirming that the complainant’s removal would not engage the non-refoulement
obligations of Australia. The State party refers to the Committee’s jurisprudence to the
effect that, as it is not an appellate or judicial body, it gives considerable weight to findings
made by organs of a State party. 14 All relevant evidence was thoroughly evaluated during a
robust merits and judicial review.
4.8
In parallel, on 3 June 2014, the complainant lodged an application for an extension
of time in order to file a notice of appeal with the Full Federal Court of Australia to review
the Federal Circuit Court judgment. Nonetheless, the Full Federal Court did not order an
urgent hearing of the matter, or issue an injunction to prevent the complainant’s removal.
The complainant’s removal could be effected on 25 June 2014 despite the application for an
extension of time, as the Full Federal Court had not ordered an urgent hearing of the matter
or issued an injunction preventing his removal. On 28 October 2014, in the absence of the
14
See the Committee’s general comment No. 1, para. 9 (a).
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