by: N. P. (Name withheld)
victim: The author
communication: 25 December 1997
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 6 May 1999,
its consideration of communication No. 106/1998, submitted to the Committee
against Torture under article 22 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
into account all information made available to it by the author of
the communication and the State party,
its Views under article 22, paragraph 7, of the Convention.
1. The author
of the communication is N. P., a Sri Lankan of Tamil ethnic origin, currently
residing in Australia where he has applied for asylum and is at risk of
expulsion. He alleges that his expulsion would constitute a violation
of article 3 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. He is represented before the Committee
by his cousin, Mahendra Nirajah.
as submitted by the author
2.1 The author
comes from Manipay, in the northern part of Sri Lanka. He claims that,
even as a young boy, he was obliged to assist the Tamil separatists, the
Liberation Tigers of Tamil Eelam (LTTE), in various ways, such as distributing
their newspapers, selling publications and encouraging students to attend
2.2 In the course
of a military offensive conducted in the north of the country in 1987,
(In the author's communication the incident in question was said to have
taken place in 1982), a landmine exploded near his family's house and
some soldiers were killed. As a result, the author was detained for 20
days, tortured and deprived of family visits. In 1988, the antiLTTE group
EPRLF, operating in collusion with the Sri Lankan army, came to the author's
school and warned the students against supporting the LTTE. The author
was singled out, brought to a EPRLF camp and tortured before he was released.
In 1989, clashes between Tamil militants and the Sri Lankan army resulted
in frequent shelling and aerial bombings in the area of Manipay. The author's
family house was destroyed and the family became displaced, living in
different refugee camps in the region.
the author started working in Colombo as a computer instructor. He was
again forced to assist the LTTE and was detained several times and interrogated.
In 1994 he was caught up in a cordon and search operation and held in
detention for 17 days together with eight other Tamils. The author states
that he was kept in a dark room except during interrogation, when strong
lights were flashed upon his face. The author was allegedly beaten, not
given proper food and subjected to sleep deprivation. He had to sleep
on the floor, but as soon as he fell asleep buckets of water were thrown
over him to keep him awake. The detainees were subsequently released with
a severe warning.
2.4 The author
states that after this incident, he tried to discontinue his association
with the LTTE, but the organization's demands did not cease. He did not
dare to report anything to the police for fear of reprisals against his
family in Jaffna. He assisted in the purchase of computer equipment and
other materials. In early 1997 he was contacted by an LTTE member who
requested him to provide accommodation for the night. The man left early
the next morning but was later arrested by the police, to whom he revealed
the author's name. The author states that the police came to his workplace.
Suspecting that they were searching for him, he managed to leave unseen.
Fearing that his activities had become known to the authorities, the author
contacted an agent who arranged for his travel to Australia via Singapore
with a false passport.
2.5 The author
arrived in Australia on 17 March 1997 and applied for a protection visa
on 21 March 1997. The application was rejected by the Department of Immigration
and Multicultural Affairs on 3 June 1997. The Refugee Review Tribunal
(RRT) turned down his appeal on 28 July 1997. Subsequent appeals, including
an application based on new information and a psychological assessment
report, were considered inadmissible by the Department of Immigration
and Multicultural Affairs, the Minister of Immigration and Multicultural
Affairs and the Federal Court.
3.1 The author
fears that he will be arrested, tortured and killed by the army if he
returns to his country. He argues that he has attracted the attention
of the Sri Lankan police, military and pro-Government militant groups
as a suspected supporter or member of the LTTE. In view of his past experiences,
including torture, he cannot ask for the protection of the Sri Lankan
authorities. He therefore submits that his forced return to Sri Lanka
would constitute a violation by Australia of article 3 of the Convention.
3.2 The author
further states that in view of the fact that he has previously been subjected
to torture and is most probably suffering from a post-traumatic stress
disorder, (no medical evidence submitted). even the possibility of detention
and interrogation in the future would entail such emotional and physical
pain that it would amount to persecution.
4.1 On 20 February
1998 the Committee, acting through its Special Rapporteur for new communications,
transmitted the communication to the State party for comments and requested
the State party, under rule 108, paragraph 9, of the rules of procedure,
not to expel the author while his communication is under consideration
by the Committee.
4.2 By a submission
of 1 September 1998, the State party informed the Committee that, following
its request under rule 108, paragraph 9, the author would not be expelled
from Australian territory until the case had been examined by the Committee.
In view of the circumstances of the author's case, it was likely that
he would remain in immigration detention until that time; the Committee
was therefore requested to examine the communication as soon as possible.
The State party challenged the admissibility of the communication, but
also addressed the merits of the case.
A. Observations on admissibility
4.3 With respect
to admissibility the State party submits that the communication is inadmissible
because it lacks the minimum substantiation that would render it compatible
with the Convention, in accordance with the jurisprudence of the Committee
(Communication No. 18/1994, X v. Switzerland; Communication No.
17/1994, X v. Switzerland; Communication No. 31/1995,X and Y
v. the Netherlands). It notes the Committee's general comment on the
implementation of article 3, according to which it is the responsibility
of the author to establish a prima facie case for the purpose of admissibility
of his or her communication, (General comment by the Committee against
Torture on the implementation of article 3 in the context of article 22
of the Convention against Torture dated 23 November 1997 (A/53/44, annex
IX). In the State party's view, where there is question of possible refoulement
there is a particular onus on the author to substantiate and convincingly
plead a prima facie case. Unlike allegations relating solely to events
on the territory of the responding State party, refoulement cases by their
very nature are concerned with events outside the State party's immediate
knowledge and control. The evidence of the author and alleged victim assumes
4.4 The State
party argues that the evidence supporting the allegation lacks credibility,
since it is inconsistent, not detailed and not independently corroborated.
Accordingly, the author has not established, prima facie, substantial
grounds for his case.
4.5 On 9 February
1996, the author's father applied for a Sri Lanka (Special Assistance)
Visa for entry to Australia. These visas were introduced in 1995 for the
purpose of assisting Sri Lankans whose lives had been seriously disrupted
by the fighting. At the time of the application, the grant of the visa
was conditional on one of the members of the family unit "the applicant"
satisfying criteria that included the following: the applicant must
be a Sri Lankan citizen usually residing in Sri Lanka at the time of the
application; the applicant's life had to have been seriously disrupted
by the fighting in Sri Lanka in the 18 months preceding the date of application;
the applicant had to be unable to resume normal life; the applicant had
to have suffered substantial discrimination on the grounds of ethnicity
or political belief; the applicant must have a parent, daughter, son,
brother, sister, aunt, uncle, nephew or niece who was an Australian citizen
or permanent resident on 1 January 1994, was usually resident in Australia
and who would provide an undertaking to support the applicant.
4.6 The application
was made in February 1996, i.e. less than 18 months after the alleged
arrest and torture of the author by police in October 1994 and after the
other alleged instances of ill-treatment of the author in 1994, 1993,
1989, 1988 and 1987. However, no mention was made in the application of
any ill-treatment of the son, despite the fact that the application form
stated that claims by any member of the close family which supported the
application should be included. It is likely that the author's father
would have known of any ill-treatment of his son since the latter had
been a schoolboy of approximately 15 when the first instance of torture
allegedly occurred. Moreover, the son appears to have kept in regular
contact with his father after leaving for Colombo. In the State party's
view, the omission by the author's father of any reference to the considerable
ill-treatment that is later alleged by his son undermines the author's
4.7 The State
party further submits that the author lacks credibility in view of inconsistent
evidence and admissions he has made since his arrival in Australia. The
State party underlines that it is not concerned with minor or irrelevant
inconsistencies and that it recognizes the jurisprudence of the Committee
that complete accuracy in the application for asylum is seldom to be expected
of victims of torture (Communication No. 41/1996, Kisoki v. Sweden,
8 May 1996, para. 9.3; Communication No. 43/1996, Tala v. Sweden,
15 November 1996, para. 10.3). In the category of minor or irrelevant
inconsistencies Australia places the differing allegations regarding the
year and extent of damage to the family home after shelling by the army
in the 1980s; the perpetrators of the alleged arrest of the author in
1987; the means by which the author received confirmation that the police
who visited his workplace in early 1997 were in fact looking for him.
The evidence provided to Australia by the author and his advisers has,
over time, included increasingly elaborate, and at times conflicting,
statements of fact concerning his alleged treatment in Sri Lanka.
4.8 The variations
between the author's original and later statements were noted by the RRT
at its hearing. On arrival at Melbourne airport, the author was asked
whether he had had any trouble with the police/army in his home country
or whether his family had experienced any other disruption. His response
was that he had been detained on one occasion, overnight. No reference
was made to any ill-treatment. One month later, in the statement supporting
his application for a protection visa, the author mentioned no fewer than
seven instances of alleged mistreatment, detention and/or torture. Three
months after arriving in Australia, in his reasons for review filed with
the RRT, he mentioned an additional experience: the alleged interrogation
for 20 days in December 1996. Responding to a request by the RRT, for
an explanation, the author stated that he had "misunderstood the question
at the airport concerning difficulties with the authorities". [The State
party notes that there was no interpreter present at the interview with
the author on his arrival at Melbourne airport. However, in relation to
the potential for misunderstanding, the State party also notes the following
comment by the RRT:
"[The author] appears to
have been able to understand and respose (sic) to a range of
other questions to which he supplied detailed factual answers. The
Immigration inspector recorded that [the author] 'appeared to be fluent
in English and as such was interviewed without the need of an interpreter'.
(Another Sri Lankan detained at the same time was provided with an
interpreter; it does not appear that [the author] at any stage requested
an interpreter or expressed any difficulty). The author's own application
form later described his ability to speak, read and write English
The State party
is of the view that the author's explanation undermines his credibility
with respect not only to the incident that he later said caused him to
leave Sri Lanka, but to all later allegations of ill-treatment.
4.9 There were
also contradictory statements regarding his movements in Sri Lanka. In
his arrival interview he said that he had lived in Jaffna until going
to Colombo in January 1997 to further his studies. Later, in his compliance
interview with the Department of Immigration and Multicultural Affairs,
the author stated that he had lived in Jaffna until March 1993, then lived
in Colombo from March 1993 to February 1995, returning to Jaffna in March
1995 because of the conditions in Colombo; he returned to Colombo about
a month before his departure for Singapore and Australia. When questioned
about the different stories by the RRT, the author stated that on arrival
he had untruthfully concealed his employment in Colombo in 1993/94 because
he had been told that this might lead to his immediate deportation. The
State party, like the RRT, has formed the view that the author has diverged
from the truth where it has suited his purposes.
4.10 The State
party underlines the importance of the RRT findings. The tribunal has
experience in reviewing applications concerning Sri Lankan nationals.
In the 1996/97 programme year, 930 applications for review were received
by the RRT from Sri Lankan nationals. Of the 678 applications processed,
236 were set aside and 408 were affirmed. Thirty-four applications were
otherwise resolved. Thus, in relation to primary decisions, the set aside
rate on review was 37 per cent.
the State party states that its view that the author's allegation lacks
substantiation is supported by the lack of detail concerning, and independent
corroboration of, the ill-treatment he allegedly experienced. During the
asylum procedure the author has only described once the details of his
ill-treatment. Even then, he described only one of the nine instances.
There is no evidence to indicate that the author suffers from posttrauma
stress which might affect his ability to provide detail of prior traumatic
4.12 The State
party also points out that there are no documents to support the allegation
that the author would face risk on return. Despite his claim to have some
scars as the result of the torture he suffered at the hands of the EPRLF,
the author has not provided any evidence of any permanent scarring that
is consistent with the alleged mistreatment at the hands of the Sri Lankan
B. Observations on merits
4.13 The State
party submits that should the Committee declare the communication admissible,
it should be found to be without merit.
4.14 The State
party recognizes that fighting between the LTTE and the Sri Lankan Government
in recent years has taken a heavy toll on the civilian population and
that despite an improvement in the human rights situation in recent years,
mass movements of civilians and human rights infringements by both the
security forces personnel and the LTTE continue to take place. However,
in accordance with the Committee's jurisprudence, specific grounds must
exist indicating that the individual concerned would be personally at
risk of torture upon return.
the level of ethnic conflict which exists in Sri Lanka at present, and
on the basis of the State party's understanding of the author's background
and the current situation in Sri Lanka, the State party has formed the
view that, as a matter of fact and law, there are no circumstances particular
to the author which constitute sufficient grounds for believing that he
personally would be subjected to torture upon his return.
4.16 The author
is a young Tamil man from Jaffna whose family has suffered as a result
of the ethnic conflict, however, he has not suffered to any greater extent
than any other young Tamil from the north. For the reasons presented in
its admissibility submission, the State party cannot accept his allegations
of ill-treatment, with the exception of the overnight detention in early
4.17 The State
party has formulated its views on the likely treatment of a person in
the author's situation based on the assessment of several expert groups
in Sri Lanka, including the Australian High Commission in Colombo and
independent organizations, and highlights, inter alia, the following.
It is recognized that Tamil people in Sri Lanka are subjected to a greater
degree of surveillance, suspicion and arrest than non-Tamil people. One
of the impacts of the LTTE attacks since October 1997 is a tightening
of security in Colombo. More Tamil people are being caught up in the security
measures, such as cordon and search operations (commonly called a "round-up")
or checkpoints. Their purpose is to identify possible terrorists. People
who do not have identity documents that readily establish their bona fides
must find other means to do so. Those who do not have documentation and
do not satisfy police that they have a legitimate reason for being in
the city will be detained until their bona fides are established.
4.18 In Jaffna,
security is less tense but security checks are nevertheless frequent.
Checks take the form of channelling all people moving on a street into
a single file for frisking. At these points, passengers in all passing
vehicles are also searched. During cordon and search operations, everybody
present, whether Tamil, Singhalese or Muslim, is checked. Non-Tamils are
likely to be sent on their way and those detained will almost invariably
4.19 The State
party submits that the profile of a person who might come under scrutiny
in any such situations is the same: young Tamils from the north or east
of Sri Lanka are most likely to be detained. However, the State party
understands from consistent reports since February 1997 by the Australia
High Commission in Sri Lanka and confirmed by independent sources that
only a small percentage of people caught in a cordon and search operation
or at a checkpoint are detained and, of those detained, the overwhelming
majority are released once their identification and bona fides are established.
4.20 In addition,
the State party notes that Tamil people, like anyone else, continue to
have the protection of the law against unlawful activities by security
services. Detained persons and their families have access to the assistance
of the Human Rights Commission and international humanitarian organizations.
There is evidence that intervention by these organizations in cases of
individuals detained for lengthy periods has led to a speedy resolution
of the case. The Sri Lankan Government has also demonstrated its willingness
to avoid complicity in unlawful ill-treatment of Tamils. In December 1994,
it enacted the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment Act (No. 22 of 1994) which makes it
an offence for any person to torture, to aid or abet torture, or to conspire
or attempt to torture any other person. It has also prosecuted members
of the security services who have violated the law.
4.21 The State
party notes the current practice of other States in relation to failed
asylum seekers from Sri Lanka. On 13 February 1998, the Australian High
Commission in Colombo advised the Government that most Western missions
in Colombo continue to be firmly of the view that Colombo and most urban
centres in Sri Lanka are safe for the return of failed asylum seekers.
Countries which are actively repatriating Sri Lankans include Switzerland,
Germany, Sweden, Norway, the United Kingdom, Italy and the Netherlands.
4.22 In view
of the above, the State party does not consider that the author will be
of interest to the security forces in a situation of active conflict,
as he has denied active involvement in the activities of the LTTE. The
State party has also confirmed that it is possible for a Sri Lankan national
in the author's situation to obtain a full Sri Lankan passport and thereby
re-enter Sri Lanka without drawing attention to himself.
4.23 On the other
hand, the State party accepts that the author does come within the profile
of individuals likely to come under scrutiny by the Sri Lankan authorities.
It also recognizes that the author will have to apply for an identification
document soon after his return which may take some days, during which
time he may be particularly vulnerable to being questioned, and possibly
detained, either in a cordon and search operation or at a checkpoint.
However, such vulnerability itself does not provide substantial grounds
for believing that the author would be subjected to torture. On the basis
that his bona fides will be able to be verified by the Sri Lankan authorities,
the State party submits that the chances of the author being tortured,
or indeed detained for a prolonged time, are very remote indeed.
the State party draws the Committee's attention to the requirement that
the risk to the alleged victim be a risk of torture, rather than a less
severe form of ill-treatment. The State party submits that neither the
fact of detention itself, nor detention and questioning, has the necessary
degree of deliberateness or intentionality nor the necessary severity
of pain to fall within the definition of torture in the Convention. Even
if the Committee were to accept that the only instance of alleged torture
that is described by the author was substantiated, it cannot be assumed
that treatment of this kind would fall within the scope of the definition
of torture. The author has described an alleged experience of questioning
combined with assault and deprivation of food, drink and sleep which,
according to the jurisprudence of the European Court of Human Rights,
does not necessarily constitute torture but rather inhuman and degrading
4.25 In conclusion,
there is no evidence that the author has personal characteristics that
make him more likely to come to the attention of the Sri Lankan authorities
than any other young Tamil from the north. For these reasons, the State
party submits that there are no substantial grounds to believe that the
author would face torture on his removal to Sri Lanka.
treatment the author is likely to receive at the hands of the Sri Lankan
authorities would not have the necessary deliberateness or severity to
constitute torture as defined in article 1, paragraph 1, of the Convention.
5.1 In accordance
with rule 110, paragraph 4, of the rules of procedure of the Committee,
the observations received from the State party were communicated to the
author's representative, with the request that any comments he might wish
to submit thereon should reach the Committee within six weeks of the date
of the transmittal. No such comments were received despite a reminder
sent several months after the given deadline.
proceedings before the Committee
6.1 Before considering
any claims contained in a communication, the Committee against Torture
must decide whether or not it is admissible under article 22 of the Convention.
The Committee notes that the author has not provided comments to the State
party's observations and considers that, in accordance with rule 108,
paragraph 8, of its rules of procedure, non-receipt of such comments within
the established time-limit should not delay the consideration of the admissibility
of the communication. It therefore proceeds to the examination of the
6.2 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
and notes that the exhaustion of domestic remedies is not contested by
the State party. It further notes the State party's view that the communication
is inadmissible because it lacks the minimum substantiation that would
render it compatible with the Convention and that there is a particular
onus on the author to substantiate and convincingly plead a prima facie
case in refoulement cases. The Committee nevertheless considers that the
author has provided enough substantial elements prima facie and that his
communication is compatible with the provisions of the Convention.
It therefore considers that the communication is admissible.
6.3 Since the
State party has also provided observations on the merits and the author,
in accordance with rule 110, paragraph 4, of the rules of procedure, has
been given the opportunity to make comments on such observations, the
Committee will proceed to examine the communication on its merits.
6.4 The Committee
must decide whether the forced return of the author to Sri Lanka would
violate the State party's obligation under article 3, paragraph 1, of
the Convention not to expel or return (refouler) an individual to another
State where there are substantial grounds for believing that he/she would
be in danger of being subjected to torture. In order to reach its conclusion
the Committee must take into account all relevant considerations, including
the existence in the State concerned of a consistent pattern of gross,
flagrant or mass violations of human rights. The aim, however, is to determine
whether the individual concerned would personally risk torture in the
country to which he or she would return. It follows that the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights in a country does not as such constitute sufficient grounds for
determining whether the particular person would be in danger of being
subjected to torture upon his return to that country; additional grounds
must be adduced to show that the individual concerned would be personally
at risk. Similarly, the absence of a consistent pattern of gross violations
of human rights does not mean that a person cannot be considered to be
in danger of being subjected to torture in his or her specific circumstances.
6.5 The Committee
is aware of the serious situation of human rights in Sri Lanka and notes
with concern the reports of torture in the country, in particular during
pre-trial detention. It is also aware of the fact that Tamils are at particular
risk of being detained following controls at checkpoints or search operations.
the Committee considers that complete accuracy is seldom to be expected
from victims of torture, it notes the important inconsistencies in the
author's statements before the Australian authorities. It further notes
that the author has not provided the Committee with any arguments, including
medical evidence, which could have explained such inconsistencies. Accordingly,
the Committee is not persuaded that the author faces a personal and substantial
risk of being tortured upon his return to Sri Lanka.
7. In the circumstances
the Committee, acting under article 22, paragraph 7, of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
is of the view that the decision of the State party to return the author
to Sri Lanka would not constitute a breach of article 3 of the Convention.