CAT/C/61/D/659/2015 2.16 On 9 January 2015, the complainant and his family8 applied for permanent residence on humanitarian and compassionate grounds in the best interests of their minor children and requested to be exempted from the 12-month bar. However, such application does not stop a deportation. 9 The complainant and his family submit that they have exhausted all available domestic remedies. The complaint 3.1 The complainant claims that his and his family’s return to Sri Lanka would place them at a serious risk of torture for the following reasons: (1) they are Tamils from the Eastern Province; (2) he was suspected of links to LTTE and was detained and tortured in 1995; (3) he worked as a United Nations local security assistant for six years and owing to his professional responsibilities, he had conflicts with government authorities and paramilitary groups; and (4) he and his family had lived for two and a half years in Canada, where there is a large Sri Lankan diaspora supporting LTTE. He stated that they would therefore be suspected of having had contacts with LTTE in the diaspora. 3.2 The complainant further claims that, as failed asylum seekers in Canada, he and his family might be suspected of having links to LTTE or having engaged in anti-Government activity. He cites reports which indicate that “rejected asylum seekers and returnees appear to be at risk of torture, if accused of anti-Government political activity or links to the LTTE”.10 The complainant argues that, making a refugee claim, especially when one has extensive knowledge of the security situation in Sri Lanka, as he does, is tantamount to anti-Government activity. The complainant submits that, owing to the above circumstances, he fears that the Sri Lankan authorities, including the paramilitary group, TMVP, will torture him and his family members. Therefore, by deporting them to Sri Lanka, the State party will violate article 3 of the Convention. State party’s observations on admissibility and merits 4.1 On 12 June 2015 and 14 August 2015, the State party submits that the present complaint contains the same factual allegations as those put before the Canadian authorities. It submits that the complaint is inadmissible. Firstly, the complainant and his family have not exhausted all available domestic remedies, as their applications for permanent residence on humanitarian and compassionate grounds and for pre-removal risk assessments are pending. Both of these processes are effective remedies, since a favourable decision on either one would enable the complainant and his family to remain in Canada. They would also be entitled to apply to the Federal Court to seek judicial review, should they receive negative decisions on those applications. A successful judicial review would result in an order for reconsideration of the impugned decision. A judicial stay of removal pending the disposition of any Federal Court application may also be available. 4.2 Secondly, the State party submits that the complainant and his family’s allegations are not substantiated, on even a prima facie basis, rendering the complaint inadmissible as manifestly unfounded under rule 113 (b) of the Committee’s rules of procedure. The complainant has not established that the family’s status as failed refugee claimants would put them at risk of torture upon return to Sri Lanka. The State party submits that failed asylum seekers are only at risk of persecution upon return if they are perceived by Sri 8 9 10 4 The application was submitted on behalf of the complainant, his wife and their minor daughter. Reference is made to the information posted on the website of Immigration, Refugees and Citizenship Canada. Reference is made to the report of the Office of the United Nations High Commissioner for Refugees (UNHCR) on failed refugee claimants returned to Sri Lanka, dated 3 February 2014, which complements an earlier report, dated December 2012, on the same issue. Amnesty International and Human Rights Watch have called upon Australia to stop the deportation of Sri Lankan refugees owing to a real risk of detention and torture. Freedom from Torture indicates that a connection at any level with LTTE puts a failed refugee claimant at risk of torture. A recent decision of the United States of America Federal Court of Appeals ruled that asylum seekers returned to Sri Lanka are subjected to torture on return. A report of the Human Rights Law Centre, dated September 2014, documents the serious risk of torture that failed asylum seekers suspected of links to LTTE can encounter when returned to Sri Lanka.