CAT/C/58/D/595/2014
or other group, and that any vulnerability arising from the complainant’s Tamil ethnicity
and its impact on his returning as a failed asylum seeker, or the scarring on his legs, in the
light of all of the circumstances, did not engage the State party’s non-refoulement
obligations.
4.6
The above-mentioned decision was confirmed by the Refugee Review Tribunal on
12 February 2013, upon appeal. The Refugee Review Tribunal is a specialist external
review body that fully and independently reviews decisions concerning protection visas.
The author was present at the hearing and was represented by a registered migration agent.
He was able to make oral submissions, with the assistance of an interpreter. The Tribunal
did not accept that his account of the October 2011 events was credible, finding it
implausible that an unknown group of men would threaten the complainant because of his
scar and would beat his father, and yet would not take any steps to detain or otherwise
pursue him. Neither did the Tribunal accept that the March 2012 events had occurred,
because it did not accept that scarring would be a reason for a paramilitary group working
outside the law to target the complainant for recruitment. The Tribunal concluded that the
complainant did not have a well-founded fear of being apprehended by the Sri Lanka Army
in the future due to his scar and/or an imputed association with the Liberation Tigers of
Tamil Eelam, or of being abducted or recruited by any paramilitary group. The Tribunal did
not consider that the complainant would face persecution solely on the basis of his Tamil
ethnicity, either. It found that upon return to Sri Lanka, the complainant might experience a
delay in having his entry processed and may be detained and fined before being released,
but decided that the above did not engage the State party’s non-refoulement obligations.
4.7
On 20 March 2013, the complainant applied for a judicial review of the decision of
the Refugee Review Tribunal, claiming that the Tribunal had failed to consider his claims
that if returned he would be remanded for a lengthy period and subjected to penalties under
the Immigrants and Emigrants Act, which included up to 18 months of imprisonment. On
17 January 2014, the Federal Circuit Court considered that the Refugee Review Tribunal
had determined that the author would not be subject to arbitrary or lengthy detention upon
returning to Sri Lanka. The Federal Circuit Court concluded that the complainant’s claims
had been dealt with sufficiently by the Refugee Review Tribunal and dismissed the
application for a judicial review.
4.8
On 21 February 2014, the complainant made a request for ministerial intervention
under sections 417 and 48B of the Migration Act 1958. His claims were assessed and found
not to meet the criteria for ministerial intervention. The decision maker did not consider
that there was any new information or evidence to contradict the Refugee Review
Tribunal’s findings.
4.9
The State party further submitted that the complainant had claimed that he may be
held by the Sri Lankan authorities for a longer period of time because his passport had been
used as evidence in a people-smuggling case and as a result he was at risk of torture and
cruel or inhuman treatment or punishment by the Sri Lankan authorities. The Department of
Immigration and Citizenship assessed those claims and concluded that they were not
credible, since there was no information suggesting that he was suspected of having taken
part in people-smuggling activities. The complainant had also claimed that he would be
unable to relocate within Sri Lanka, since the State authorities controlled the entire country
now and persons who had departed illegally and/or failed asylum seekers were taken into
custody upon their arrival in Sri Lanka. That claim had been considered at the protection
visa stage, and the decision maker had concluded that the author did not have a profile with
the Sri Lankan authorities and could live elsewhere in Sri Lanka.
4