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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 15 May 2001,
Having concluded its consideration of communication No. 49/1996, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The authors of the communication are Mr. S.V., his wife and daughter,
citizens of Sri Lanka currently seeking refugee status in Canada. They claim
that forcible return to Sri Lanka would constitute a violation of articles 3
and 16 of the Convention against Torture by Canada. They are represented by
counsel.
1.2 On 12 June 1996 the Committee forwarded the communication to the State
party for comments and requested it not to expel the authors while their
communication was under consideration by the Committee.
The Facts as Submitted by the Authors
2.1 The author is a Tamil from the area of Jaffna in the north of Sri Lanka.
He and his wife have two children, an 8-year-old daughter and a 2-year-old
son who was born in Canada and is a Canadian citizen. The authors claim that
in the period from 1987 until their departure from Sri Lanka in 1992 they,
and especially the author, suffered serious persecution from the Indian
Peacekeeping Force (IPKF), the Liberation Tigers of Tamil Elam (LTTE), the
Sri Lankan Army (SLA) and the Colombo police. The author was arrested on
several occasions and, in the course of at least two of them, he was
tortured by the army and the police.
2.2 The author was a member of the Tamil United Liberation Front (TULF),
which advocated the establishment of an autonomous Tamil state in Sri Lanka
by peaceful means. In October 1987, a military conflict broke out between
LTTE and IPKF. The author and his wife were forced to vacate their home, in
Thirunelvely, Jaffna, to escape the bombing. When they returned to their
home, they found that it had been occupied by IPKF members. When the author
asked them to leave, they refused and accused him of being a member of LTTE.
2.3 In May 1988, the author was detained in a camp established on his own
property by the Eelam People's Revolutionary Liberation Front, a militant
Tamil group allied to IPKF. He was detained for 10 days, during which he was
repeatedly assaulted and questioned about possible connections to LTTE.
2.4 In 1990, LTTE took control of the Tamil region. The author's property
was appropriated by LTTE and he himself was threatened at gunpoint when he
demanded that they vacate the property. He was then forced to abandon his
home permanently and the family moved to Kaithady, Jaffna.
2.5 In December 1990, while travelling from Colombo to Jaffna, the author
was detained by SLA in Vavuniya. He was questioned, accused of being a
member of LTTE and brutally assaulted. Three days later he was beaten again
in an attempt to extract a confession. His head was banged repeatedly
against a wall until he fell unconscious. The authors claim that, as a
result of this incident, the author suffered brain damage that has gravely
impaired his ability to speak. Following this incident, the author went to
Colombo seeking medical treatment.
2.6 In March 1991, after the assassination of the Sri Lankan Deputy Minister
of Defence, the police began a round-up of all Tamil males in Colombo. The
author, who had been staying with his cousin in Colombo, was arrested by
four armed police officers on 4 March 1991. He was interrogated about his
presence in Colombo and accused of being an LTTE member. He was repeatedly
assaulted by the police with hands and rifle butts and stayed in detention
for two days. He was released after the intervention of a lawyer retained by
his cousin. His cousin advised the author that he could no longer reside
with him as he feared further trouble with the police. The author returned
to Jaffna.
2.7 On 18 February 1992, LTTE attempted to force the author to join the
movement. When he refused, they ordered him to report to their office the
next day. Should he fail to report, he was told that he would be considered
an enemy of the Tamil people. The author understood this statement as a
threat to kill him and fled for Colombo that evening.
2.8 On 3 March 1992, the lodge in which he was staying in Colombo was raided
by the police and the author, along with other Tamil males, were arrested.
He was taken to Wellawatte police station and questioned about his reasons
for being in Colombo and his connections with LTTE. He was released the
following day on condition that he report weekly to the police and not
change his address in Colombo.
2.9 Henceforth, the author feared that he could at any time be arrested,
interrogated and tortured on suspicion that he was a member of LTTE. He
decided that his safety was no longer assured anywhere in Sri Lanka. He left
for Canada on 13 March 1992 and arrived the following May. [FN1] He claimed
Convention refugee status on the basis of persecution owing to his race, his
political opinions and his membership in a particular social group.
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[FN1] According to the State party, the author went first to Malaysia, where
he stayed until 16 May 1992, then to Singapore on 16 May 1992 and finally
arrived in Canada on 19 May 1992. The author did not claim protection in
either of the first two countries.
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2.10 The author's wife states that she was visited on several occasions in
Jaffna by LTTE members looking for her husband. An LTTE member demanded that
she pay 200,000 rupees as punishment for her husband's disobedience, giving
her one month in which to come up with the money. As a result she fled with
her daughter to Colombo. In Colombo she had to register with the police and
her identity card was confiscated. She was accused of being an LTTE
supporter. In August 1992, after a police round-up of Tamils, she decided
that there was no safe place for herself and her daughter in Sri Lanka and
she left for Canada in September 1992. Upon her arrival she claimed refugee
status for herself and her daughter.
2.11 The Immigration and Refugee Board, after a hearing on 4 March 1993,
found that the authors could not be accorded refugee status. First, the
extortion activities of LTTE did not constitute persecution but rather
harassment not causing undue hardship. Secondly, the authors had in Colombo
an internal flight alternative; the Board found that there was no serious
possibility of the author being persecuted in Colombo and therefore, it was
not unreasonable that he could find refuge in that city.
2.12 By decision, dated 7 January 1994, the Federal Court Trial Division
dismissed the family's application for leave to apply for judicial review in
which they alleged errors of fact and of law in the Refugee Board's
decision.
2.13 On 28 January 1994, the authors applied for a review by Canadian
Immigration, under the Post-Determination Refugee Claimant in Canada
programme (PDRCC), of the decision not to grant the authors refugee status.
The purpose of PDRCC review is to identify individuals who, although
determined not to be Convention refugees, face an objectively identifiable
risk to life or inhumane treatment should they be returned to their country
of origin.
2.14 The authors' application for PDRCC review was rejected on 9 November
1995. It was the view of the PDRCC officer that, although there were strong
grounds for the authors' fearing to return to the north of Sri Lanka, an
internal flight alternative existed in Colombo. He noted in particular that
the assault by SLA which caused the author's medical problems had occurred
near Jaffna. The arrests by the Colombo police were part of a pattern of
general harassment of Tamils by the police which he felt did not constitute
an "objectively identifiable risk", given that most detainees were released
within three days though some had been required to pay bribes to obtain
their release. He also indicated that part of the authors' extended family
lived in Colombo and could facilitate their successful settlement in the
city. In addition, the medical report indicating that the author suffered
post-traumatic stress disorder which might be aggravated if he were to
return to Sri Lanka had only been made on the basis of one visit to a doctor
rather than in the context of ongoing treatment and was not specific
concerning the conditions that could trigger recurrence of the trauma.
2.15 The authors made a further appeal on 13 May 1995 to the Minister of
Immigration based on the Humanitarian and Compassionate Grounds procedure
under section 114 (2) of the Immigration Act. On 9 December 1996 a negative
decision was issued. An application for leave to apply for judicial review
against that decision was dismissed by the Federal Court on 11 April 1997.
The Complaint
3.1 The authors fear persecution and ill-treatment from the authorities in
Sri Lanka given their past experiences and their absence from the country
since 1992. They submit that in repatriating them Canada would violate
article 3 of the Convention against Torture.
3.2 The authors provide medical evidence that the mental and physical
injuries suffered by the author while in detention have had drastic
long-term effects. He has difficulties in speaking and moving his neck and
suffers symptoms of post-traumatic stress disorder (psychiatric medical
reports are provided). They submit that, given these afflictions, the author
would be particularly vulnerable to mistreatment and, further, would not
receive the medical care he needs in Sri Lanka.
3.3 The authors further explain that their daughter, Nitarsha, is physically
and mentally handicapped, suffering from cerebral palsy, right hemiparesis
and an active seizure disorder. She requires special care, treatment and
education. She would not receive those in Sri Lanka.
3.4 The authors submit that, given these medical conditions, the deportation
of the family would amount to inhuman and degrading treatment on the part of
the Canadian authorities in violation of article 16 of the Convention
against Torture.
Observations by the State Party on Admissibility
4.1 By a note dated 9 June 1997 the State party contested the admissibility
of the communication. It indicated that the authors did not seek judicial
review of the decision of PDRCC and that this remedy might still be
available if time for filing were extended by the Court. Moreover, if the
authors were to succeed in an application for leave to apply for judicial
review, the decision of the Federal Court Trial Division on the judicial
review application could be further appealed to the Federal Court of Appeal,
should the judge of the Trial Division certify that the case raises a
serious question of general importance. Moreover, a decision of the Federal
Court of Appeal could be appealed, with leave, to the Supreme Court of
Canada.
4.2 On judicial review, the authors would be entitled to raise arguments
under the Canadian Charter of Rights and Freedoms. In this regard, it is
relevant to note that in the context of extradition the Supreme Court of
Canada has held that section 7 of the Charter is violated by returning
someone to a country in circumstances that would "shock the conscience of
Canadians".
Counsel's Comments on Admissibility
5.1 In his reply, dated 28 April 1998, counsel indicated that the authors
had applied for judicial review of the decision adopted by the Immigration
and Refugee Board. However, leave to be heard on this question was refused
by the Federal Court. There is no possibility of appealing that decision. It
is the final step in the refugee determination procedure in which there is a
judicial or quasi-judicial process that looks into the substance of the
matter; all subsequent judicial controls look only into the procedures.
5.2 The post-determination review in November 1995 was negative. This
procedure has been criticised by refugees, lawyers and church groups because
it never results in a positive decision.
5.3 The only unresolved issue that is addressed by the State party is
whether the refusal of PDRCC should have occasioned a request for judicial
review by the Federal Court and whether this recourse can still be resorted
to. Counsel pointed out that judicial review of the PDRCC procedure was not
sought because of the lack of financial resources of the applicants and the
futility of it. The jurisprudence of the Federal Court clearly establishes
that the decision of the post-determination claims officer is an entirely
discretionary decision and that the Court is only concerned with the
procedural issues.
5.4 Instead of a request for judicial review, an appeal on humanitarian
grounds covering the same questions in law was made. The issue of the
post-traumatic stress was fully presented, as was the danger of return. The
torture was fully documented and the immigration officer judged the story to
be credible but refused to grant asylum because of the internal flight
alternative.
5.5 The refusal of the appeal on humanitarian grounds was challenged in the
Federal Court and leave was denied. According to the Court's constant
jurisprudence, decisions like the one under review are discretionary and,
therefore, the Court does not intervene on the substance of the cases, only
on whether the procedures have been fair. All legal arguments were
considered and disposed of by the Federal Court.
5.6 Counsel stated that it is objectively impossible to ask the Federal
Court to litigate again on exactly the same questions. The Court would
clearly consider that an abuse of the process.
5.7 The Canadian authorities concluded that the authors were at risk in the
Jaffna peninsula, but that Colombo could be a safe haven for them. Counsel
noted, however, that the author was severely mistreated by the police in
Colombo in March 1991, that he was arrested arbitrarily in March 1992 and
that there is a consistent pattern of arbitrary arrests, detention, and
sometimes disappearances and extra-judicial executions of Tamils in Colombo.
5.8 The conclusion of the immigration officer in the humanitarian and
compassionate review procedure was that risks were involved. He based his
conclusion on the report of one of the doctors who examined the author
according to which the latter suffers from post-traumatic stress disorder
and his symptoms have increased as he is worried about being returned to Sri
Lanka. In the doctor's opinion, the author would have great difficulty
functioning in that country because of his neurological difficulties. In
spite of this, application was refused on the grounds of "medical
inadmissibility" that the authors had not shown that they had established
themselves economically in Canada. The family has been living on social
assistance since their arrival in Canada and, given their circumstances,
they might become a chronic welfare case.
5.9 In the medical report referred to by the immigration officer the doctor
also indicates that some Tamil refugees he had examined stated that they
were at greater risk in Sri Lanka if they had scars or signs of injury, as
these could be regarded by the authorities as an indication that their
injuries occurred while fighting with LTTE. The author's neurological
limitations could be regarded as having been caused in this manner. If he
were questioned by the authorities in Sri Lanka he would not be able to
express himself verbally and someone who was unaware of his neurological
limitations could regard this as being obstructive or antagonistic.
5.10 Counsel argued that neither the Government of Canada nor the Office of
the United Nations High Commissioner for Refugees (UNHCR) evaluated the
objective risk for the individuals in this particular case but only
considered the question of deportations to Sri Lanka in general.
5.11 Counsel contended that returning a person who suffers from serious
physical and mental damage as a result of human rights abuses to the country
where he was subjected to those abuses constitutes inhuman treatment. The
lack of medical care or proper psychiatric assistance in Sri Lanka could per
se constitute a violation of article 16 of the Convention. Counsel, however,
raised this as a circumstance aggravating the inhuman treatment involved in
the deportation.
Committee's Decision on Admissibility
6.1 At its twentieth session, the Committee considered the admissibility of
the communication. The Committee was of the opinion that once the
Humanitarian and Compassionate Grounds procedure, including a leave
application addressed to the Federal Court, was completed, all available
domestic remedies had been exhausted. Accordingly, article 22, paragraph 5
(b), did not prevent it from considering the communication. The Committee
considered that there was no other obstacle to the admissibility of the
communication. It therefore decided that the communication was admissible.
Observations of the State Party on the Merits of the Communication
7.1 According to the State party, the facts as presented by the authors were
examined by a competent and independent domestic tribunal following a fair
process, in accordance with Canada's refugee determination procedure. The
State party also notes that the authors were represented by counsel during
the course of the proceedings, interpretation was provided and the author's
viva voce testimony was elicited.
7.2 It was the view of the Refugee Board that the central issue with respect
to the author's situation is that he was released by the police. This
clearly indicates that the author was not considered an LTTE member or
sympathizer by the very authorities he fears. The Board stated in its
reasons that it considered the authors' allegations concerning the beatings
received at the hands of the Sri Lankan army and the medical reports he
filed with the Board. However, the Board noted that the definition of
"Convention refugee" is forward-looking and past experiences, though
relevant, are not determinative in the assessment. It states that this is
also true of article 3 of the Convention against Torture.
7.3 Regarding the author's wife and child, the Board determined that they
were not Convention refugees as they did not have problems when they were in
Colombo. Furthermore, as their claims were joined with and dependent upon
the author's claim, the Board determined that they were not Convention
refugees.
7.4 With respect to the authors' application to PDRCC, the State party
explains that, in most cases, the Convention refugee definition will overlap
with article 3 of the Convention against Torture. In circumstances where
there is no overlap, officials conducting the post-determination review must
give consideration to article 3 of the Convention. In accordance with the
criteria for these reviews, the post-determination officer reviewed the
authors' written submissions prepared on their behalf by their lawyer, the
documentation they attached and documentation on the situation in Sri Lanka.
The submissions included evidence not produced at the time of the hearing
before the Refugee Board, notably a medical report and a 1994 report by
Amnesty International. [FN2]
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[FN2] The State party provides an explanation of this procedure in its PDRCC
Guidelines.
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7.5 Regarding the humanitarian and compassionate review of the case under
section 114 (2) of the Immigration Act, the State party contends that the
reviewing officer took into account all the submissions of the applicants
and a wide range of circumstances, including the risk of unduly harsh or
inhumane treatment in the country of return, current conditions in the
country and new developments in Sri Lanka since the hearing before the
Refugee Board and the PDRCC review. The immigration officer indicated that
"risks were involved" [FN3] but did not confirm that torture was one of
them. The risk assessment is not limited to the risk of torture.[FN4]
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[FN3] The State party does not say what the specific risks were in relation
to this case.
[FN4] The State party has provided the text "Immigration Applications in
Canada made on Humanitarian or Compassionate (H&C) Grounds", which describes
this procedure in detail.
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7.6 According to the State party, the above-mentioned national proceedings
demonstrate no manifest error or unreasonableness and were not tainted by
abuses of process, bad faith, manifest bias or serious irregularities. It
also states that it is not for the Committee to evaluate the facts and
evidence of a particular case.
7.7 In the State party's view, the communication reveals that the authors of
the communication left their country because they feared LTTE or because
they feared being caught between LTTE and the governmental authorities. Such
fear does not suffice to substantiate a communication under the Convention.
The authors also state in their submission - and this is confirmed in the
medical report - that they feared torture at the hands of LTTE if they are
returned to Sri Lanka. The author himself claimed that it was the order to
join LTTE that prompted him to leave for Colombo in 1992. Consequently, the
State party argues that, in the north of the country, the authors do not
fear the Sri Lankan authorities but LTTE.
7.8 The State party submits that acts committed by LTTE do not fall under
the competence of the Committee since the definition of "torture" in the
Convention refers expressly to acts committed "by or at the instigation of
or with the consent or acquiescence of a public official or other person
acting in an official capacity". Acts committed by LTTE cannot be attributed
to the State and therefore are not covered by the Convention.
7.9 As to the alleged risk of torture at the hands of the State, the State
party submits that the authors of the communication have not established
substantial grounds to believe that, if the authors were deported to Sri
Lanka, there is a personal, present or foreseeable risk of torture. It
states that the authorities are not interested in the authors and makes the
following points in this regard:
Although the author claimed, before the Refugee Board, to be an ardent
supporter of TULF, he never indicated that he was a member of this movement
or had been involved in political activities. In any event, TULF is now
represented in Parliament and supports peace initiatives taken by the
Government;
In his refugee application, the author claimed that he chose Canada because
he was unable to go anywhere else. However, his Personal History Form,
completed by him on his arrival into Canada, shows that he travelled to many
different countries and for long periods, returning voluntarily to his
country each time, even after the incidents in which he alleges that he had
problems with the authorities. In particular, almost one year after his
alleged torture by the army in December 1990, the author left his country
for Singapore and returned voluntarily to Sri Lanka;
The author travelled many times to Colombo and had no problems with the
authorities except in March 1991 and March 1992. This establishes that the
author is not suspected of complicity with LTTE;
While the author claimed that he was tortured by the authorities when
arrested in December 1990, March 1991 and March 1992 he has not provided any
evidence to indicate that any pain suffered in March 1991 amounted to
torture as defined by the Convention. Also, when last arrested in 1992, the
event which is alleged to have prompted him to leave the country, the author
was not beaten and was released the next day with the only obligation being
to report to the authorities once a week;
As to the author's physical condition, his wife stated that, apart from a
longer period of questioning because of his speech difficulties, her husband
had no other problem with the police when he was in Colombo. The author
himself stated that the police were able to understand him when he spoke
with them;
As to the argument that the author would face torture because of his speech
difficulties, the State party argues that this is mere conjecture and is
based on the medical report which states that "(s)ome Tamil refugees, whom I
have examined, have indicated that they believe that they are at risk in Sri
Lanka if they have scars or signs of injury as these could be regarded by
the authorities as an indication that their injuries had occurred while
fighting with the LTTE". Such beliefs cannot constitute substantial grounds
required by article 3 of the Convention;
The author's wife has not herself been arrested by the authorities and she
had no problem with the police in Sri Lanka. Therefore, there is a total
lack of evidence that she was accused or suspected of being an LTTE
supporter;
Contrary to the author's wife's claim, there is no evidence that her
identity card was taken away by the Sri Lanka authorities. In any event, she
was not arrested, detained, accused or asked to make any subsequent reports
to the police;
In 1991, the author, and in 1992, his wife, legally obtained passports in
Sri Lanka;
The authors have not claimed that persons in their immediate circle, notably
family members, were arrested or tortured.
7.10 The State party refers to decisions of the Committee where the authors
have failed to show that the danger is personal and present. [FN5] The State
party also refers to a case decided by the European Court of Human Rights
involving the removal of Sri Lankans. In that case the allegation of a
violation of article 3 of the European Convention on Human Rights was
dismissed as the plaintiffs did not establish that their personal position
was any worse than that of other members of the Tamil community who were
returning to their country. The mere possibility of ill-treatment was not in
itself sufficient to foresee that they would be subjected to ill-treatment
following their return. [FN6]
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[FN5] X v. The Netherlands (036/1995), J.U.A. v. Switzerland (100/1997),
H.D. v. Switzerland (112/1998), S.M.R. and M.M.R. v. Switzerland (103/1998).
[FN6] The State party does not provide the name or the registration number
of this case.
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7.11 The State party submits that the communication rests mainly on the
general situation of human rights in Sri Lanka. The authors do not link that
general situation to their personal situation. As to the general situation
in Sri Lanka, the report of the Working Group on Enforced or Involuntary
Disappearances (1998) indicates that persons most often reported detained
and missing were young Tamil men accused or suspected of belonging to,
collaborating with, aiding or sympathizing with LTTE. The State party argues
that the authors do not fall into this category.
7.12 Furthermore, it states that the information provided by UNHCR indicates
that torture and other forms of mistreatment are not practised by the police
and security authorities in Colombo. The United States Department of State
Country Report for 1998 (dated February 1999) indicates that there were no
reports of disappearances in Colombo and Jaffna. In March 1997, UNHCR
reported that rejected asylum-seekers who arrived with national travel
documents should have no problems when arriving at Colombo airport.
7.13 Moreover, the State party argues that in its assessment of the
communication, the Committee should take into consideration the different
measures taken by the Sri Lankan authorities to investigate and prevent acts
of torture, as well as remedies available to the authors. In this context,
the State party notes that, inter alia, all arrests and detentions must be
reported to the Human Rights Commission (established in 1997) within 48
hours, the reports of three presidential commissions of inquiry into past
disappearances have been made public, investigations into 485 of the 3,861
cases of alleged human rights violations have been completed and 150 alleged
perpetrators charged in the High Court, and a 24-hour service to deal with
public complaints of instances of harassment by elements in the security
forces has been established by the Government.
7.14 With respect to the alleged violation of article 16 of the Convention,
the State party argues that this article obliges States parties to apply the
obligations contained in articles 10 to 13 to acts of cruel, inhuman or
degrading treatment or punishment. As article 16 does not mention article 3,
it does not create an obligation not to remove someone from a State in the
circumstances described in that article.. [FN7]
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[FN7 ]Travaux préparatoires of the Convention
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7.15 The State party is of the view that should article 16 of the Convention
be found to apply where it is alleged that removal per se constitutes cruel,
inhuman or degrading treatment or punishment, it should do so only in very
exceptional circumstances. It is submitted that the aggravation of the
author's state of health possibly caused by his deportation would not amount
to the type of cruel, inhuman or degrading treatment envisaged by article 16
of the Convention and attributable to the State party; reference is made in
this regard to the Committee's decision in G.R.B. v. Sweden. Furthermore,
article 16 of the Convention obliges States to prevent the proscribed
treatment; it does not create a positive duty to provide medical care should
the authors allegedly not receive comparable medical care in their home
country. Further, it is submitted that there is no evidence that the
required medical care in Sri Lanka is inadequate. Finally, article 16,
paragraph 2, indicates that the provisions of the Convention are without
prejudice to the provisions of national law which relate to expulsion.
Counsel's Comments on the Merits
8.1 Counsel contests the State party's assertion that this case was examined
by "a competent and independent domestic tribunal". He claims that the
Immigration and Refugee Board failed to appreciate both the facts of the
case and the applicable law.
8.2 Counsel states that the most recent evidence available from Sri Lanka
shows a situation of terrible human rights abuses in line with those
described in article 3, paragraph 2, of the Convention against Torture.
There have been several suicide bomb attacks in Colombo and other areas of
the country. There has also been a major LTTE offensive in the north. There
are reports of large-scale round-ups of Tamils in the centre and the capital
of the country, as well as a serious resurgence of forced disappearances.
[FN8]
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[FN8] Reports of Amnesty International and other organizations are provided
by counsel in support of this argument.
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8.3 Counsel refers to the Committee's general comment on article 3 of the
Convention against Torture and argues that article 3 applies to the author's
case as follows.
(a) There is a situation in Sri Lanka of a "consistent pattern of gross,
flagrant or mass violations of human rights". The existence of torture with
impunity, on a massive and systematic scale, is clear from any reading of
the situation;
(b) The author has been mistreated in the past by agents of the Sri Lankan
State. He has brain damage because of severe mistreatment by soldiers of the
Sri Lankan army. He has been detained on more than one occasion in Colombo
and mistreated by the police. This happened shortly before he left Colombo;
(c) There is independent medical and psychiatric evidence from doctors and
psychiatrists associated with the Canadian Centre for Victims of Torture
that establishes clearly that he is a torture victim. The torture has had a
long-lasting effect on the author and his family;
(d) There is no substantive change in the situation in Sri Lanka since the
author left the country. The situation at the time of counsel's submission
is said to have been very serious and dangerous. A high level of repression
and the legal arsenal that permits almost total impunity are firmly in
place;
(e) The author was a supporter of the main Tamil party, TULF. He is from the
north and he has suffered torture in the past. His situation as a torture
victim in the past puts him greatly at risk today;
(f) The author is highly credible, with strong support from serious
organizations in Canada. The original decision did not find against him on
the issue of credibility;
(g) There is nothing incoherent or implausible about what the author says.
His personal security and his life are at risk in Sri Lanka today.
8.4 Counsel also contests the assertion that the authors' main fear is of
the Tamil Tigers. Counsel contends that the jurisprudence cited by the
Canadian authorities appears to relate to cases that were not substantiated
or where the author in question was not previously subjected to torture or
directly targeted.
8.5 Counsel states that it is untrue to say that there is no longer torture
in Colombo. All of the international human rights reports that are available
state the contrary. Even the Federal Court of Canada recognized, in its
decision granting the stay, that there is a risk of irreparable harm for the
author if he were sent back, as did the immigration agent examining his
case.
Issues and Proceedings Before the Committee
9.1 The Committee has considered the communication in the light of all the
information made available to it by the parties, in accordance with article
22, paragraph 4, of the Convention.
9.2 The issue before the Committee is whether or not the forced return of
the authors to Sri Lanka would violate the obligation of Canada under
article 3 of the Convention not to expel a person to another State where
there are substantial grounds for believing that he would be in danger of
being subjected to torture.
9.3 In reaching this decision, 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. The aim of the determination,
however, is to establish whether the individuals concerned would be
personally at risk of being subjected to 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 a sufficient ground for determining that a particular
person would be in danger of being subjected to torture upon his return to
that country; additional grounds must exist 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.
9.4 The Committee recalls its general comment on the implementation of
article 3, which reads:
"Bearing in mind that the State party and the Committee are obliged to
assess whether there are substantial grounds for believing that the author
would be in danger of being subjected to torture were he/she to be expelled,
returned or extradited, the risk of torture must be assessed on grounds that
go beyond mere theory or suspicion. However, the risk does not have to meet
the test of being highly probable" (A/53/44, annex IX, para. 6).
9.5 The Committee recalls that the State party's obligation to refrain from
forcibly returning a person to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected
to torture is directly linked to the definition of torture as found in
article 1 of the Convention. For the purposes of the Convention, according
to article 1, "the term 'torture' means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity". The Committee considers that the issue of whether the
State party has an obligation to refrain from expelling a person who might
risk pain or suffering inflicted by a non-governmental entity, without the
consent or acquiescence of the Government, falls outside the scope of
article 3 of the Convention. Consequently, the issue, on which the authors
base part of their claim that they would suffer torture by LTTE or other
non-governmental entities on return to Sri Lanka, cannot be considered by
the Committee.
9.6 With respect to the possibility of the author suffering torture at the
hands of the State on return to Sri Lanka, the Committee notes the author's
allegations that he was tortured by the Sri Lankan army in December 1990 and
that this treatment, which left him disabled, amounted to torture in terms
of article 3 of the Convention. It also notes the allegations that he was
maltreated by the police in Colombo in 1991. However, the Committee also
notes the State party's contention, unchallenged by the author, that he left
Sri Lanka regularly and always returned, even after the incident in December
1990. The Committee notes that with respect to the incident in March 1992,
which according to the author was the reason for his departure, he was not
maltreated and was released by the authorities. Furthermore, the author has
not indicated that since that period he has been sought by the authorities.
In fact, the author has not alleged to have been engaged in political or
other activity within or outside the State, or alleged any other
circumstance which would appear to make him particularly vulnerable to the
risk of being placed in danger of torture. For the above-mentioned reasons,
the Committee finds that the author has not provided substantial grounds for
believing that he would be in danger of being tortured were he to be
returned to Sri Lanka and that such danger is personal and present.
9.7 Similarly, the author's wife and their daughter have never been arrested
or subjected to torture. The obligation to register at the police station at
Colombo and the allegation, challenged by the State party, that the police
took her identity card are not substantial grounds for believing that they
would be in danger of being subjected to torture were they to be returned to
Sri Lanka and that such danger is personal and present.
9.8 The Committee recalls that, for the purposes of article 3 of the
Convention, the individual concerned must face a foreseeable, real and
personal risk of being tortured in the country to which he or she is
returned. In light of the foregoing, the Committee deems that such a risk
has not been established by the authors. Moreover, the Committee observes
that article 3 applies only to situations of torture as defined in article 1
of the Convention.
9.9 With regard to the authors' allegation that the decision to expel them
would in itself constitute an act of cruel, inhuman or degrading treatment
or punishment in contravention of article 16 of the Convention, the
Committee notes that the authors have not submitted sufficient evidence in
substantiation of this claim.
10. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the authors' removal to Sri Lanka by
the State party would not constitute a breach of article 3 or article 16 of
the Convention.
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