CAT/C/71/D/884/2018
persecution on the basis of his Tamil ethnicity. That determination was based on various
reports, including the UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum Seekers from Sri Lanka and annual reports by the Department of
State of the United States of America, according to which there had been no reports that
Tamils risked persecution based on their ethnicity alone. With regard to the complainant’s
perceived personal connection to the Tamil Tigers, the delegate of the Minister held that there
was no information that the complainant had personally been targeted, but was rather that he
had been caught up in round-ups and questioned during and after the war. Despite the fact
that he had been harmed in the past owing to general suspicion by the authorities about people
in that area being involved with the Tamil Tigers, the delegate of the Minister referred to
recent country information to conclude that she did not consider that the complainant faced
the same general risk in the future, and that there was nothing specifically about the
complainant that would lead the authorities to be suspicious that he was associated with or
supportive of the Tamil Tigers. Lastly, the delegate of the Minister did not consider that the
complainant’s young age or the fact that he would be a returnee from a Western country
would attract any adverse attention from the authorities upon his return. In view of the above,
the complainant’s protection visa application was refused on 4 September 2013.
4.4
The State party notes that on 23 September 2013, the complainant applied to the
Refugee Review Tribunal for a review of the merits of the decision to refuse him a protection
visa. The complainant was physically present at the Tribunal hearing, was represented by his
registered migration agent by telephone, and was able to make oral submissions with the
assistance of an interpreter. The Tribunal found that the complainant was not a witness of
truth and that he had fabricated most of his claims. The Tribunal noted that he had added to
key claims as he had progressed through the application process and that his account during
the hearing was vague and inconsistent and lacked credibility. He failed to mention at the
outset two key and lengthy detentions in 2010, and his accounts of those detentions when he
did mention them were inconsistent. He also failed to mention any political involvement,
even when asked, contrary to his later claims of political involvement. According to the
Tribunal, the complainant was detained neither by the authorities nor by the Karuna group
nor by anyone else in 2010, and nobody was looking for him. It referred to evidence provided
by the complainant that he had lived in the same area for many years since the end of the war
without harm, asserting that had he been suspected of being associated with the Tamil Tigers,
he would have been arrested and sent to a rehabilitation camp towards the end of the war.
Based on the evidence and country information before it, the Tribunal concluded on 13 May
2015 that the complainant did not face a real risk of being subjected to torture or other cruel,
inhuman or degrading treatment or punishment upon his return to Sri Lanka.
4.5
The State party submits that both the Federal Circuit Court and the Federal Court of
Australia dismissed the complainant’s claims raised in his appeals. Both courts ruled that
there was no error in concluding that there was no substantial, clearly articulated claim that
relied upon established facts that the complainant had the profile of a person suspected of
links with the Tamil Tigers or that his profile fell under any of the categories of Tamils
returning to Sri Lanka who would be subjected to detention and/or torture and/or ill-treatment.
During his hearing before the Federal Court of Australia, the complainant also submitted that
the interpreter at his hearing before the Refugee Review Tribunal had not properly interpreted
what he had said; that he considered that the Tribunal member had confused him by the
questions asked and, accordingly, that he had given incomplete answers; that if he had the
opportunity, there were facts about his life that he could now disclose; and that the Tribunal
member had not accepted the positive aspects of his case, only accepting aspects that went
against him. The Federal Court of Australia ruled that there was nothing about the merits of
those matters that would justify the granting of leave in order to raise them before it. It noted
that the complainant had been satisfied with the interpretation and that no issue concerning
interpretation had been identified at the Tribunal hearing.
4.6
The State party notes that the complainant also submitted requests for ministerial
intervention under sections 48B and 417 of the Migration Act. Under these sections, the
Minister for Immigration may intervene in individual cases if the Minister thinks that it is in
the public interest to do so. According to the State party, to support his claim, the complainant
submitted photographs and a purported copy of an arrest warrant dated 10 November 2017,
copies of three assessments conducted in 2018 by International Health and Medical Services
4