CAT/C/61/D/725/2016
claims that, at the time of the second ministerial intervention request, the decision maker
took note of the psychiatrist’s report and acknowledged that his traumatic experiences had
had an impact on his mental health. The complainant submits that it was incumbent on the
decision maker to recognize the psychiatrist specialist report (of 15 July 2015, based on the
assessment made on 8 July 2015) and the disclosure of torture, which amounted to a new
substantive issue that had not previously been considered. The State party erred in not
reviewing the whole of the complainant’s claims on the basis of the psychological impact
of his experience of torture. According to the doctor, the counsellor and the psychiatrist, the
complainant presented significant consistent symptoms of post-traumatic stress disorder,
anxiety and depression; he had a poor appetite and sleep disruption and was in full fear and
some suicidal ideation. The psychiatrist concluded that his symptoms and presentation were
consistent with his history of abuse and torture, and subsequent expression of major
depression.26 This explains why the complainant did not disclose sexual torture earlier, but
also why his evidence was seen by the decision maker as inconsistent or changing in detail.
Thus the psychological evidence strongly supports the view that the complainant had
suffered torture, including sexual torture. He reported that he had been accused of having
ties with the Tamil Tigers and that he continued to be at risk of torture in Sri Lanka. As a
Tamil male who had suffered torture, he engages the State party obligations of nonrefoulement.
5.8
In conclusion, the complainant submits that all evidence indicates that he is a
survivor of sexual torture and it is clear that he made efforts to disclose this during his
protection claims appeals process, at both the Refugee Review Tribunal level and the
second ministerial appeal level. The State party protection assessment process did not take
the complainant’s psychological state into adequate consideration.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint submitted in a communication, the Committee
must decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
The Committee notes the State party’s submission that the present communication is
manifestly unfounded and thus inadmissible pursuant to rule 113 (b) of the Committee’s
rules of procedure. The Committee, however, considers that the communication has been
substantiated for the purposes of admissibility, as the complainant has sufficiently detailed
the facts and the basis of the claim for a decision by the Committee.
6.3
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention,
it shall not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. It notes that in the present case,
the State party has not disputed that the complainant has exhausted all available domestic
remedies. Accordingly, the Committee concludes that it is not precluded by article 22 (5) (b)
of the Convention from examining the present case. As the Committee finds no further
obstacles to admissibility, it declares the communication admissible and proceeds with its
consideration of the merits.
Consideration of the merits
7.1
In accordance with article 22 (4) of the Convention, the Committee has considered
the present communication in the light of all information made available to it by the parties.
7.2
The issue before the Committee is whether the removal of the complainant to Sri
Lanka would violate the State party’s obligation under article 3 of the Convention not to
expel or to return (refouler) a person to another State where there are substantial grounds
26
Reference is made to a large body of research evidence in the field of psychology and neurobiology
which details the effects of torture and trauma on memory.
11