CAT/C/51/D/387/2009
8.3
Furthermore, the complainant’s submissions do not support his claim that the Sri
Lankan Government will acquiesce to the LTTE carrying out acts of torture upon his return
to Sri Lanka. The complainant merely states that the Sri Lankan Government is not likely to
actively seek to protect him, and he relies on the separate claim that he is at risk of
persecution from the Sri Lankan Government to support his proposition. The State party
considers this argument speculative and that it does not satisfy the test for “acquiescence”
as set out by the Committee in its general comment No. 2. In addition to the unmeritorious
nature of the complainant’s claim with regard to a risk of persecution at the hands of the Sri
Lankan Government, no evidence has been put forward to explain how the Sri Lankan
Government would know or have reasonable grounds to believe that the complainant is at
risk of torture by the LTTE. The complainant has also not provided any evidence to suggest
that the Sri Lankan Government generally consents or acquiesces to the conduct of torture
by the LTTE. The State party does not consider in any case that the complainant is at risk of
torture by the LTTE as mentioned in its previous submissions.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any complaint contained in a communication, the Committee
must decide whether or not it is admissible under article 22 of the Convention.
9.2
The Committee has ascertained, as it is required to do under article 22, paragraph 5
(a), of the Convention that the same matter has not been and is not being examined under
another procedure of international investigation or settlement.
9.3
The Committee considers that the communication has been substantiated for
purposes of admissibility, as the complainant has sufficiently elaborated the facts and the
basis of the claim for a decision by the Committee. As to the State party’s arguments
regarding the inadmissibility ratione materiae of the communication, the Committee
considers that, as this issue is linked to the merits of the case, it will not deal with it at the
admissibility stage. The Committee finally notes that the State party has not challenged the
admissibility of the communication pursuant to article 22, paragraph 5 (b), of the
Convention.
9.4
Accordingly, the Committee finds that no obstacles to the admissibility of the
communication exist and thus declares it admissible.
Consideration of the merits
10.1 The Committee has considered the communication in the light of all the information
made available to it by the parties concerned, in accordance with article 22, paragraph 4, of
the Convention.
10.2 The issue before the Committee is whether the expulsion of the complainant to Sri
Lanka would constitute a violation of the State party’s obligation under article 3 of the
Convention not to expel or return (“refouler”) a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture.
10.3 The Committee must evaluate whether there are substantial grounds for believing
that the complainant would be personally in danger of being subjected to torture upon
return to Sri Lanka. In assessing this risk, the Committee must take into account all relevant
considerations, pursuant to article 3, paragraph 2, of the Convention, including the
existence of a consistent pattern of gross, flagrant or mass violations of human rights.
However, the Committee recalls that the aim of such determination is to establish whether
the individual concerned would be personally at a foreseeable and real risk of being
subjected to torture in the country to which he or she would return.
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