CAT/C/51/D/429/2010
of origin. In practice, the Refugee Appeals Board considers that these conditions are met if
there are specific and individual factors rendering it probable that the person will be
exposed to a real risk.
4.7
Decisions of the Refugee Appeals Board are based on an individual and specific
assessment of the case. The asylum seeker’s statements regarding the motive for seeking
asylum are assessed in the light of all relevant evidence, including general background
material on the situation and conditions in the country of origin, in particular whether
systematic gross, flagrant or mass violations of human rights occur. Background material is
obtained from various sources, including country reports prepared by other Governments,
and information available from the Office of the United Nations High Commissioner for
Refugees (UNHCR) and prominent non-governmental organizations. In particular the State
party refers to a UNHCR report dated 5 July 2010, which states that Sri Lankans
originating from the north of the country are no longer in need of international protection
under broader refugee criteria or complementary forms of protection solely on the basis of
the risk of discriminatory harm and that there is no longer a need for group-based protection
mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity
originating from the north of the country. The report also concludes that “at the time of
writing the generally improved situation in Sri Lanka is still evolving”.
4.8
In cases where torture is invoked as part of the basis for asylum, the Refugee
Appeals Board may request that the asylum seeker be examined for signs of torture. The
decision as to whether it is necessary to undertake a medical examination is made at a
Board hearing and depends on the circumstances of the specific case, such as the credibility
of the asylum seeker’s statement about torture.
4.9
The State party submits that it is the responsibility of the complainant to establish a
prima facie case for the purpose of admissibility of the complaint under article 22 of the
Convention. In the present complaint, it has not been established that there are substantial
grounds for believing that the complainant would be in danger of being subjected to torture
if returned to Sri Lanka. The complaint is manifestly unfounded and therefore it should be
declared inadmissible.
4.10 The purpose of the complaint is to use the Committee as an appellate body to have
the factual circumstances advocated in support of her claim of asylum reassessed by the
Committee. The State party recalls the Committee’s general comment No. 1 (1997) on the
implementation of article 3 of the Convention3 and points out that the Committee should
give considerable weight to findings of fact made by the State party concerned. In the
present case, the complainant had the opportunity to present her views, both in writing and
orally, with the assistance of legal counsel. Subsequently, the Refugee Appeals Board
conducted a comprehensive and thorough examination of the evidence in the case.
Therefore, it submits that the Committee must give considerable weight to the findings of
the Board.
4.11 The State party submits that it was unnecessary to initiate an examination of the
complainant for signs of torture, since her statements were not credible. It further states that
article 3, paragraph 1, of the Convention requires that the individual concerned must face a
foreseeable, real and personal risk of being tortured in the country to which she is to be
returned and that the risk of torture must be assessed on grounds that go beyond mere
theory or suspicion, although it does not have to meet the test of being highly probable.4
3
4
Official Records of the General Assembly, Fifty-third Session, Supplement No. 44 (A/53/44
and Corr.1), annex IX.
The State party refers inter alia to communications No. 270/2005 and 271/2005, E.R.K. and Y.K.
v. Sweden, decision adopted on 30 April 2007, paras. 7.2 and 7.3; No. 282/2005, S.P.A. v. Canada,
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