CAT/C/51/D/387/2009
would be a high priority target for reprisal. Nonetheless, the complainant is genuinely
apprehensive that the people with whom he had personal dealings and who were connected
to the LTTE, as well as other people in their network may wish to harm him if they become
aware that he had returned to Sri Lanka. Regarding the status of the LTTE as a non-State
actor, article 1 of the Convention against Torture also refers to acts committed at “the
instigation of or with the consent or acquiescence of” public officials. Given that the
complainant is at risk from the Sri Lankan Government itself, it is foreseeable that should
he advise the Government of his predicament and fears (concerning attack by the LTTE),
the Sri Lankan Government is not likely to actively seek to protect him.
5.14 On the discrepancies related to his past detention by the LTTE (para. 4.12 above),
contrary to the State party’s assertion, the complainant did show his scars to the Foundation
House psychologist, as evidenced by a letter dated 18 June 2009 by the complainant’s
counsel to the Department of Immigration and Citizenship (DIAC), with an explanation that
DIAC found satisfactory at the time.14 The complainant considers that many of the
inconsistencies pointed out by the State party are linked to his lack of command of English
and the PTSD from which he was already suffering at the time.
State party’s further observations
6.1
On 16 December 2011, the State party considers that the new information provided
by the complainant does not contain any evidence to support the admissibility of his
allegations. The complainant relies heavily on the UNHCR 2010 guidelines on Sri Lanka;
however, the guidelines, in this context, primarily refer to violence directed towards human
rights activists and journalists.15 Trade unionists and supporters of the UNP are not
specifically identified in the guidelines as being at risk of violence from Sri Lankan
Government authorities.
6.2
With regard to the general situation in Sri Lanka, recent reports indicate an improved
human rights and security situation following the end of the armed conflict between the Sri
Lankan army and the LTTE in May 2009. Reports of behaviour which might constitute
torture for the purposes of article 1 of the Convention — that is, with the consent or
acquiescence of a Sri Lankan public official or other person acting in official capacity —
have largely been directed towards people suspected of being LTTE sympathizers or
operatives.16. A significant period of time has passed since the complainant’s departure from
Sri Lanka in 2005. During the presidential elections in January 2010, the people affiliated
with the UNP who were targeted were not solely targeted because they were members of
the UNP, but also because they were members of the left-wing Sinhalese-nationalist
People’s Liberation Front (JVP) or the Tamil National Alliance (TNA), which is not the
complainant’s case.
6.3
The complainant provided two letters: one from a Member of Parliament from the
UNP and one from the General Secretary of the trade union, Jathika Sevaka Sngamaya.
While these letters confirm the complainant’s involvement with the UNP and JSS, they do
not provide any new evidence that the complainant is at a foreseeable, real and personal
risk of torture by the Sri Lankan authorities. For example, the letters do not identify who
might harm the complainant, aside from generally referring to “political vigilante groups”
and “political opponents.” On the whole, recent country information and letters provided
14
15
16
See the minutes of the Department of Immigration and Citizenship dated 19 June 2009, annex R to
the complainant’s comments.
The State party refers to the UNHCR Eligibility Guidelines, 5 July 2010 (HCR/EG/10/02), pp. 6-7.
The State party refers, inter alia, to the United States Department of State, 2010 Country Reports
on Human Rights Practices – Sri Lanka, 8 April 2011.
11