CAT/C/68/D/855/2017
Committee states that, as it is not an appellate or a quasi-judicial body, it gives considerable
weight to findings of fact that are made by organs of a State party. 2
4.4
The State party notes that a transparent and reasoned consideration of the
admissibility of a complainant’s claims is a key procedural element of the individual
complaints process and essential to the success of the complaints framework. The State
party further notes that in certain recent views adopted by the Committee, in response to the
State party’s detailed submissions that the complainants’ claims were inadmissible ratione
materiae or manifestly unfounded, the Committee observed that the issues raised with
regard to admissibility were closely related to the merits. The State party notes that it is
necessary for the Committee to consider and determine the State party’s submissions, as
required under the rules of procedure, that complaints raising allegations that clearly do not
fall within the definition of torture in article 1 of the Convention, or that are manifestly
unfounded, are inadmissible. On this basis, the State party requests that the Committee
specifically consider and respond to the arguments made by the State party with regard to
the admissibility of the complaint. The State party further submits that, should the
Committee find the communication admissible, the complainant’s claims are without merit.
4.5
The State party recalls that the delegate of the Minister for Immigration and Border
Protection of Australia refused the complainant’s application for a protection visa on 1
October 2012. The delegate did not accept several of his claims, including that the United
People’s Freedom Alliance would be pleading for his return after he left the party and that
he had been detained by the Alliance. While accepting that he might have been involved
with the Alliance and might have encountered some issues if he had genuinely shifted his
support to an opposing party, the delegate did not accept that he had a significant political
profile that would warrant ongoing adverse interest in him. The delegate also took note of
the significant lapse of time since his shift in political allegiance as well as the absence of
any adverse action taken against him. The delegate further found that the complainant,
being a Sinhalese Buddhist, was not a person whom the authorities would target upon his
return to Sri Lanka, and that although he might be subjected to routine questioning upon
arrival, such questioning would not amount to a real risk of serious harm.
4.6
The State party submits that in upholding the original refusal, the Tribunal found
that the complainant’s significant confusion regarding political allegiances revealed his
ignorance about the parties he had allegedly supported. Despite his claim to have been a
youth leader in his community, when questioned about how his followers responded to his
change in political allegiance, the complainant appeared to have not given any particular
thought to such a question. In its second decision after the Federal Court’s remittal of the
case, the Tribunal noted that the complainant had remained in Sri Lanka for over two years
after he allegedly became the subject of the United People’s Freedom Alliance’s ill will.
The Tribunal also noted that no attempt had been made to arrest or seriously harm him even
though country information indicated that the Alliance had frequently arrested and
imprisoned individuals for political reasons during 2011. The Tribunal also found that he
had been politically inactive while in Australia; that the Alliance remained the ruling
coalition and would have no need for the complainant’s support; and that he had presented
no evidence of threats towards him from Dahanayake.
4.7
The State party further notes that in his request for ministerial intervention of 8
November 2017, the complainant claimed for the first time that his alleged targeting by the
Alliance had been part of a campaign to ruin the political career of his uncle. The
Department of Immigration and Citizenship decided not to refer the matter to the Minister,
as the request did not demonstrate unique or exceptional circumstances.
4.8
The State party notes that, in his request for ministerial intervention and in his
communication to the Committee, the complainant has raised several claims concerning the
conduct and findings of the Refugee Review Tribunal on remittal (see para. 3.3 above).
First, the State party asserts that at the Tribunal’s hearing, the complainant could have
applied for the Tribunal’s power to issue confidentiality orders through his representative,
but he did not. The State party submits that, in its second decision, the Tribunal expressly
2
4
Committee against Torture general comment No. 1 (1997) on the implementation of article 3 of the
Convention in the context of article 22 was superseded by general comment No. 4 (2017) on the
implementation of article 3 of the Convention in the context of article 22 (CAT/C/GC/4), effective
from 6 December 2017 (para. 3).