CCPR/C/113/D/2272/2013 Appendices Appendix I Joint opinion of Committee members Sarah Cleveland, Sir Nigel Rodley, and Víctor Rodríguez-Rescia (dissenting) 1. The author alleges that he is an ethnic Tamil from the North of Sri Lanka whose two brothers and cousin were killed by EPDP, and that he participated in various activities of LTTE. The State party has presented a detailed assessment of this evidence in its observations. 2. However, the author also presented recent evidence that returned Tamil asylum seekers who are perceived to have a link with LTTE continue to face a real risk of torture or ill-treatment contrary to article 7 upon return to Sri Lanka (see paras. 3.3 and 5.3). Reports available at the time when State authorities examined the author’s asylum request, as well as more recent reports, indicate that rejected asylum seekers and returnees may be at risk of torture if believed to have real or perceived links to LTTE. This evidence includes guidelines issued by UNHCR in December 2012 that documented “recent cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka”.1 The information available to the Committee indicates that these concerns continue. 2 3. The State party’s observations in the case under review never meaningfully engage with the risk attached to being a failed asylum seeker. In evaluating a case alleging a real risk of treatment contrary to article 7 upon return to another country, the Committee takes into account relevant and available information at the time that it makes its decision. In the light of the information provided by the author, the information presently available to the Committee, and the lengthy record of human rights violations in Sri Lanka, we believe that the State party’s authorities have not given appropriate consideration to the author’s claim that he would be at risk of being subject to torture or ill-treatment if returned to his country 1 2 See UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012, pp. 8 and 18. See UNHCR, “Sri Lanka: Country Of Origin Information Relating To The Targeting Of Ex-LTTE Members/Combatants”, 3 February 2014; Human Rights Watch, World Report, 20 February 2015: “The government’s treatment of Tamils forcibly returned to Sri Lanka after being denied asylum overseas continues to be a significant concern … Human Rights Watch and others have documented the authorities’ use of torture against people suspected of links to the LTTE, including those returned as failed asylum seekers from the United Kingdom and other countries.” A Human Rights Law Centre report of 30 September 2014 (“Australia’s hasty return of Sri Lankan asylum seekers puts them at risk of torture, rape and other mistreatment”) documented the serious risk of torture that failed asylum seekers suspected of links to LTTE may continue to encounter when returned to Sri Lanka, as did Freedom from Torture’s updated submission to the Human Rights Committee for the fifth periodic review of Sri Lanka in October 2014, which observed that “people of Tamil ethnicity with even minimal or merely suspected links to the LTTE have been detained and tortured and that these practices continue in the post-conflict period” (emphasis in original). See also Gaksakuman v. US Attorney General, 767 F.3d 1164, 1170, United States Court of Appeals, Eleventh Circuit, 2014 (“the evidence tended to prove that officials in Sri Lanka tortured at least some failed asylum seekers, particularly if they had an actual or perceived association with the Liberation Tigers”). 9