CAT/C/51/D/429/2010
have been offered a form to sign authorizing a medical examination, which she maintains
she was ready to do. Rather than doing that, the authorities chose to base their decision on a
“credibility test” based on the written material and the interview.
5.3
The complainant also argues that the Refugee Appeals Board failed to order a
medical examination based on the exact same arguments as the Immigration Service. She
submits, however, that the authorities, in assessing the credibility of asylum seekers, rely on
the forms the latter fill out when applying and on their statements during the interview with
the Immigration Service. She maintains that in her case she filled out the respective form in
her native language and that it was subsequently translated, but during the Board hearing at
least one mistake in the translation was detected and there could have been more. She also
reiterates that torture victims often have difficulties recounting their experiences. She
maintains that the Immigration Service and the Refugee Board were obliged to conduct a
medical examination to verify her account of having been tortured. She further submits that
her statements were consistent during the entire process and that the fact that no medical
examination of her scars and health condition was conducted deprived her of the
opportunity to prove that she had suffered from torture.
5.4
The complainant further makes reference to a case of the European Court of Human
Rights, in which an applicant, who had scars on his body, was found to be in danger of
torture upon return, since the Court considered it likely that the airport authorities would
detain him, strip search him, discover the scars and conclude that he was a Tamil Tiger.8
She further submits that even though in her appeal to the Refugee Appeals Board she
explicitly described the incident when she was detained and her teeth were knocked out of
her mouth, the decision of the Board does not mention it.
5.5
The complainant reiterates that if she is forcibly returned to Sri Lanka, the Danish
authorities would be in violation of article 3, paragraph 1 of the Convention, since she
would be at risk of torture and in violation of article 3, paragraph 2 of the Convention, since
the authorities failed to investigate whether she had indeed been subjected to torture.
5.6
The complainant submits that she has established a prima facie case for the purposes
of admissibility under article 22 of the Convention. She further submits that the decision to
deport her is a violation of article 3 of the Convention, firstly because the general
information regarding human rights in Sri Lanka, the UNHCR guidelines and the European
Court of Human Rights jurisprudence clearly prove that no forced deportation of Tamils
from the north of Sri Lanka should take place due to the risk of persecution or torture; and
secondly, because in a case-by-case assessment of the complainant`s claim, in order to
establish if substantial grounds to fear torture existed, the authorities should have allowed
for an examination of the claimant.
State party’s further observations
6.1
On 30 May 2011, the State party submitted with regard to the relevance of the
UNHCR eligibility guidelines, that the latter are of a general nature and do not contain any
specific assessment of the personal circumstances of the individual asylum seeker, whereas
the Refugee Appeals Board decides on individual cases. The Board applies the Convention
and other international human rights treaties based on the personal circumstances of the
applicant, together with all background information available on the conditions in the
8
The complainant refers to the European Court of Human Rights case N.A. v. U.K., application No.
25904/07, judgment of 17 July 2008. The author also refers to other Court cases where Tamils were
found to be in danger of torture: T.N. v. Denmark, appl. No. 20594/08; T.N. and S.N. v. Denmark,
appl. No. 36517/08; S.S. and others v. Denmark, appl. No. 54703/08; P.K. v. Denmark, appl. No.
54705/08; and N.S. v. Denmark, appl. No. 58359/08.
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