CAT/C/67/D/723/2015
Refugees, and the State party emphasizes that it is entitled to make domestic laws contrary
to existing jurisprudence.
4.7
The State party notes the complainant’s new claim of having been detained,
physically assaulted and questioned by the Sri Lanka Army and the Sri Lanka Navy each
time he went fishing between 2001 and 2012. The State party contests these claims and
submits that, during the protection visa interview conducted on 19 August 2013 and the
Refugee Review Tribunal hearing on 30 January 2014, the complainant claimed that he had
been physically assaulted and questioned by the Sri Lanka Army on one occasion in 2005,
while fishing in Mullaitivu. The complainant did not articulate that he had been ill-treated
by the Army at any other time between 2001 and 2012. Furthermore, the complainant did
not express at any point during the domestic processes that he had been physically assaulted
by members of the Sri Lanka Navy as well as the Sri Lanka Army. Therefore, the State
party refutes that the alleged physical assaults occurred as frequently as the complainant
claims before the Committee and that both the Army and the Navy were involved in these
incidents. The State party also notes that, had the complainant been detained, physically
assaulted and questioned each time he went fishing between 2001 and 2012, there would be
no reasonable explanation as to why he did not provide details of those incidents at an
earlier stage of the domestic processes.
4.8
In response to the complainant’s new assertions regarding recent changes to the
Migration Act, the State party reiterates that the competence of the Committee is to
consider communications relating to the situation or circumstances of a particular
complainant or group of complainants. The State party further notes that the complainant
does not assert or show that he is personally affected by the impugned provisions. In any
event, the State party contends that, while it is stated in new section 197C of the Act that
non-refoulement obligations are not relevant in the context of an officer’s duty to remove
an unlawful non-citizen under section 198, the explanation has been offered that the State
party will continue to meet its non-refoulement obligations through other mechanisms, such
as a protection visa application or the use of the relevant minister’s powers under the Act,
rather than through the removal powers set out in section 198. In sum, the State party is of
the view that the complainant’s claims are unsubstantiated and are not relevant to his claims
for protection.
4.9
In response to the complainant’s new evidence in support of his claim that the
authorities of Sri Lanka were looking for him as a result of the grease man incident, the
State party notes that the letter dated 24 September 2015 purports to prove the visits of the
authorities to the complainant’s house on 1, 5 and 26 July and 15 August 2012. The State
party emphasizes that, had the officers of the State Intelligence Service of Sri Lanka visited
the complainant’s house as he presently claims – and if these visits had occurred as
frequently as detailed in the newly submitted letter – it is implausible that the complainant
would not have provided this supporting evidence at the time of, or soon after, his arrival in
Australia. Even if the State Intelligence Service had in fact visited the complainant’s house
on the above occasions in 2012, there is no reason to believe, on the basis of the available
country information, that the authorities of Sri Lanka would be interested in the
complainant many years after the alleged incidents occurred.
4.10 The State party notes that the complainant provided new country information to
support his claims of a present, personal and real danger of torture. The State party
reiterates that relevant country information has already been considered under domestic
processes, and that the newly submitted reports do not establish the existence of additional
grounds to show that the complainant would be at a foreseeable, real and personal risk of
torture if returned to Sri Lanka.
Complainant’s comments on the State party’s observations
5.1
On 30 December 2016, the complainant commented on the State party’s
observations. In response to the State party’s statement that his claims have been examined
in robust domestic proceedings, he submits that the Refugee Review Tribunal did not
consider his accounts credible primarily because it found the grease man incident
implausible. The complainant argues that, in spite of the consideration given at numerous
court instances, his accounts of the facts could not be reviewed at the highest levels, as
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