CAT/C/61/D/725/2016 4.3 The State party asserts that each case must be assessed on its own facts. Whether conduct amounts to torture will depend on the nature of the alleged act. It recalls that the obligation of non-refoulement under the Convention is confined to torture and does not extend to cruel, inhuman or degrading treatment or punishment, 2 and that the Committee has retained this distinction in its jurisprudence. 3 If it is established that the alleged acts would constitute torture, article 3 also requires that there exist “substantial grounds for believing” that the author would be in danger of being subjected to torture. That is, the author must be at a “foreseeable, real and personal risk of being subjected to torture”.4 The Committee has also stated that the danger must be “personal and present”.5 The onus of proving that there is such a risk of being subjected to torture upon extradition or deportation rests on the author. The risk must be “assessed on grounds that go beyond mere theory and suspicion”.6 4.4 The State party submits that it is the responsibility of the complainant to establish a prima facie case for the purpose of admissibility of his complaint and, that he has failed to do so. His claims have been considered by a series of domestic decision makers, including the Department of Immigration and Border Protection during the determination of his protection visa application, and the Refugee Review Tribunal. He also sought a judicial review by the Federal Circuit Court of Australia and the Federal Court of Australia for legal error in the Tribunal’s decision. His claims were also assessed during the ministerial intervention process. Robust domestic processes have considered and determined that the complainant’s claims are not credible and do not engage the non-refoulement obligations of Australia. In particular, his claims have been assessed under the complementary protection provisions contained in paragraph 36 (2) (aa) of the Migration Act, which reflects the State party’s non-refoulement obligations under the Convention and the International Covenant on Civil and Political Rights. 4.5 The complainant lodged an application for a protection visa on 30 May 2012. He was granted a bridging visa on 3 July 2012, in order for him to reside lawfully in the community while his application was under consideration by the Department of Immigration and Border Protection. On 23 August 2012, the complainant’s protection visa application was refused. The decision maker conducted an interview with the author, with the assistance of an interpreter, and considered other relevant material, such as country information provided by the Australian Department of Foreign Affairs and Trade and available open-source material. The complainant’s application was based on his fear of harm from the Criminal Investigation Department, the Karuna group (and any men in the white van not associated with that group) and/or his previous employer. In particular, he alleged that he had been working as a security guard at the Eastern University in Batticaloa when, on 11 November 2011, a group of people he could not identify had attacked the arts faculty, where he was working. He stated that they threw rocks at the windows and at him and that he ran away and notified other security guards. When the author and other guards returned, the group had dispersed. The author said he reported the incident to the police the next day. He alleged that, on the following day, a group of students threatened him and implied that they were responsible for the incident. He further claimed that, on 15 November 2011, he had been returning home when he was forced into a white van by three men, who threatened to kill him if he reported any further on the incident and those involved. He alleged that he had been interrogated by the Criminal Investigation Department in relation to the incident on 11 November 2011. He stated that they had insisted he tell them who the perpetrators were and suggested that, as no one else had seen the perpetrators, he had caused the damage himself. He reported that he had taken time off work and the Criminal Investigation Department had continued to harass him ad hoc, including by questioning him at home on 25 November 2011. He claimed to have lived between his home and his aunt’s house for the following three months before leaving for 2 3 4 5 6 4 See Committee against Torture general comment No. 1 (1997) on the implementation of article 3, para. 1. See communication No. 417/2010, Y.Z.S. v. Australia, decision dated 23 November 2012, para. 4.10. See communication No. 203/2002, A.R. v. The Netherlands, decision dated 14 November 2003, para. 7.3. See general comment No. 1, para. 7. See A.R v. The Netherlands (note 5 above), para. 7.3.