CAT/C/67/D/723/2015
neither the Federal Circuit Court nor the Federal Court of Australia has the power to review
findings of facts.
5.2
In relation to his supposed lack of credibility, the complainant asserts that, even
though the Refugee Review Tribunal has explicitly enunciated that credibility should be
assessed in a liberal manner and not based on uncovering small discrepancies, certain
omissions were weighed heavily against his credibility. The complainant submits that he
provided explanations for these omissions. In particular, he referred to his low level of
education, to his high level of stress and anxiety at the time when he gave his accounts of
the facts, and to the fact that he did not understand the importance of some questions at the
beginning of the process. He claims that he provided consistent testimonies throughout the
proceedings, except at the very first “biodata” interview, the primary purpose of which was
not to assess claims, and thus that doubts cannot be cast on his credibility on that basis.
5.3
With respect to the State party’s observation that he inconsistently referred to the Sri
Lanka Navy and the Sri Lanka Army, he notes that the word he used in Tamil meant the
equivalent of “armed forces”, making no distinction between the army and the navy. His
explanation was accepted by the Refugee Review Tribunal, and it would therefore be unfair
on the part of the State party to make adverse inferences on that basis before the
Committee.
5.4
As regards the State party’s statement that the complainant failed to mention in the
course of domestic proceedings that he had witnessed war crimes committed by the Sri
Lanka Army three years prior to his departure, the complainant notes that it was the grease
man incident that provoked his hiding and departure. The implications of the preceding
events could not be realized at the time of the proceedings, as they occurred in Mullaitivu,
which was then a war zone. Therefore, the complainant did not think at that time that he, as
a witness to these events, could be of interest to the Sri Lanka Army. Moreover, the
prospect of an investigation into these incidents only became a serious one for the
Government of Sri Lanka in 2010, when an investigative committee was set up. In sum, the
complainant did not raise the claim of having witnessed war crimes during the domestic
proceedings because he could not foresee that witnessing such events could have such
serious personal implications in the future.
5.5
Regarding the State party’s assertion that there had been a change of Government in
Sri Lanka since the above-mentioned incidents occurred, the complainant contends that this
does not mean that the military would not have recourse to intimidation and violence to
conceal their unlawful terrorist activities during wartime.
5.6
As regards the State party’s observation concerning the complainant’s statement that
there was no safe place for him to return to in Sri Lanka, the complainant submits that he
raised this claim before the Department of Immigration and Border Protection and before
the Refugee Review Tribunal. He also submits that, contrary to the arguments of the State
party, he did mention during his protection interview that he had been severely beaten in
2005 and from then onwards, almost on a weekly basis, in Sri Lanka. Furthermore, it was
set out in the decision of the Refugee Review Tribunal that the complainant had been
beaten frequently. With regard to the power of the relevant minister, which would allegedly
ensure respect for the State party’s non-refoulement obligations, the complainant notes that
jurisprudence clearly shows that, instead of being granted protection visas, applicants have
been sent back from Australia to their country of origin, with reference made to the aim of
serving the public interest. The complainant therefore argues that ministerial power may be
easily abused. As to the newly presented evidence in the form of a letter written by the
complainant’s wife, the complainant notes that the reason why he did not submit it earlier is
that he could not have foreseen that the letter could prove so useful for him.
5.7
In sum, the complainant claims that he continues to be of interest to the military of
Sri Lanka because he would be able to testify about the links between the grease man
activities and the military, as well as about war crimes committed by the Sri Lanka Army.
Although recent political changes have been accompanied by assurances of proper
investigation into war crimes, there have been no real developments in this regard.
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