CAT/C/61/D/614/2014
complainant and of any response by him or on his behalf, the Full Federal Court issued a
judgment considering whether he had been removed in accordance with the Migration Act
1958, and in particular whether he had been provided with a reasonable length of time and
with reasonable access to legal advice for the purposes of bringing legal proceedings for
injunctive relief to prevent his removal, as required under section 256 of that Act. The Full
Federal Court held — while having some doubts as to whether the complainant had had a
reasonable opportunity, due to a shortage of time, to bring legal proceedings to prevent his
removal — that it was not possible to conclude that the complainant did not have a
reasonable opportunity to obtain legal advice, in light of the apparent availability of a
migration agent. Therefore, the Full Federal Court dismissed the application. Accordingly,
the State party requests the Committee to accept that Australia has thoroughly assessed the
complainant’s claims through domestic processes and has found that it does not owe the
complainant protection obligations under the Convention.
4.9
As regards the assessment of a personal risk of torture, the State party submits that
the existence of a general risk of violence does not constitute a sufficient ground for
determining that a particular person would be in danger of being subjected to torture upon
return to that country, and that the complainant did not establish the existence of additional
grounds to show that he was at a foreseeable, real and personal risk of torture if returned to
Sri Lanka. The State party reiterates that the issues raised by the complainant, through
domestic processes, relating to human rights violations in Sri Lanka and to the return of
asylum seekers there, have been specifically and carefully considered by all domestic
processes, including against the background of information provided by the Office of the
United Nations High Commissioner for Refugees, by non-governmental organizations and
by foreign affairs ministries of other governments. 15
4.10 Finally, the State party contends that during his removal, the complainant was
accompanied by two officials from the Department of Immigration and Border Protection
from his departure from Australia to the time he left the airport upon arrival in Colombo.
Upon his arrival, he was interviewed by the Criminal Investigation Department of the Sri
Lanka Police at the airport. However, he was not detained or charged by the police on his
immediate return to Sri Lanka, despite being a Tamil who had failed to attain protection in
Australia, and he was allowed to leave freely. The complainant left the airport through a
regular exit, where he met with his brother.
4.11 The State party concludes that the complainant did not provide sufficient evidence
indicating that he would be personally at risk of torture, or that his removal could amount to
treatment that would be considered as amounting to torture under article 1 of the
Convention.
Complainant’s comments on the State party’s observations
5.
On 15 September 2014, the complainant was invited to submit comments by 15
October 2014. No response was received. On 16 and 21 June 2017, two additional
reminders were addressed to the complainant’s counsel, to no avail.16
Issues and proceedings before the Committee
The State party’s failure to cooperate and to respect the Committee’s request for interim
measures pursuant to rule 114 of its rules of procedure
6.1
The Committee notes that the adoption of interim measures pursuant to rule 114 of
its rules of procedure, in accordance with article 22 of the Convention, is vital to the role
entrusted to the Committee under that article. Failure to respect the interim measure
15
16
6
Including the Department of Foreign Affairs and Trade, of Australia; the Home Office, of the United
Kingdom of Great Britain and Northern Ireland; and the Department of State, of the United States of
America.
There is no further information from the complainant on file beyond his initial complaint.