CAT/C/61/D/725/2016
for believing that he or she would be in danger of being subjected to torture. In assessing
this risk, the Committee must take into account all relevant considerations, pursuant to
article 3 (2) of the Convention, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. However, the Committee recalls that the aim of
such determination is to establish whether the individual concerned would be personally at
a foreseeable and real risk of being subjected to torture in the country to which he or she
would be returned. It follows that the existence of a pattern of gross, flagrant or mass
violations of human rights in a country does not, as such, constitute sufficient reason for
determining that a particular person would be in danger of being subjected to torture on
return to that country; additional grounds must be adduced to show that the individual
concerned would be personally at risk. 27 Conversely, the absence of a consistent pattern of
flagrant violations of human rights does not mean that a person might not be subjected to
torture in his or her specific circumstances.
7.3
The Committee recalls its general comment No. 1 (1997) on the implementation of
article 3, according to which the risk of torture must be assessed on grounds that go beyond
mere theory or suspicion. While the risk does not have to meet the test of being highly
probable, the Committee notes that the burden of proof generally falls on the complainant,
who must present an arguable case that he or she faces a foreseeable, real and personal risk.
The Committee further recalls that, in accordance with its general comment No. 1, it gives
considerable weight to findings of fact that are made by organs of the State party
concerned,28 while at the same time it is not bound by such findings and instead has the
power, provided by article 22 (4) of the Convention, to assess freely the facts based upon
the full set of circumstances in every case.
7.4
In assessing the risk of torture in the present case, the Committee notes the
complainant’s contention that there was a foreseeable, real and personal risk that he would
be tortured if returned to Sri Lanka owing to his imputed links to the Tamil Tigers, born or
belonging to a particular social and ethnic group (a Tamil male from an area previously
controlled by the Tamil Tigers who has a scar on his leg that could be seen as being a war
scar), his fear of harm from the Criminal Investigation Department, the Karuna group (and
any men in the white van not associated with that group) and his previous employer, his
alleged torture, including sexual torture, by the Criminal Investigation Department during
the investigation of the university incident in 2011 and his unlawful departure from Sri
Lanka. The Committee also notes the State party’s observation that its domestic authorities
found that the complainant lacked credibility owing to inconsistencies in his factual account
of events; that the complainant has not provided credible evidence and has failed to
substantiate that there was a foreseeable, real and personal risk that he would be subjected
to torture by the authorities if returned to Sri Lanka; that his claims have been reviewed by
the competent domestic authorities, in accordance with domestic legislation and taking into
account the current human rights situation in Sri Lanka; and that the domestic authorities
were not convinced that the complainant fell within the category of persons entitled to
protection under the 1951 Convention relating to the Status of Refugees.
7.5
The Committee notes the State party authorities did not accept that the complainant
had been approached by students about the broken windows at the university; that he had
been abducted by people in a van warning him to be quiet; and that he had been threatened
or harassed by the police or Criminal Investigation Department in relation to the incident as
his account was inconsistent and changed a number of times. In that regard, it observes that
the complainant was able to remain living around his home area in his country and to
continue working in his job at the university as a security guard until shortly before he left
Sri Lanka to come to the State party. The Committee notes that the State party authorities
did not accept either that his father or other members of the family had been threatened or
27
28
12
See, for example, communications No. 282/2005, S.P.A. v. Canada, decision adopted on 7 November
2006; No. 333/2007, T.I. v. Canada, decision adopted on 15 November 2010; No. 344/2008, A.M.A. v.
Switzerland, decision adopted on 12 November 2010; No. 550/2013, S.K. and others v. Sweden,
decision adopted on 8 May 2015, para. 7.3; and No. 648/2015, S.S. v. Australia, decision adopted on
10 May 2017, para. 10.2.
See, for example, communication No. 356/2008, N.S. v. Switzerland, decision adopted on 6 May 2010,
para. 7.3.