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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 3 May 2005,
Having concluded its consideration of complaint No. 211/2002, submitted to
the Committee against Torture by Mr. Prashanthan Anton Chelliah 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
complainant, her counsel and the State party,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant is Mr. Prashanthan Anton Chelliah, a Sri Lankan national
of Tamil ethnic origin born on 15 March 1976 and, at the time of submission
of the complaint, detained in immigration detention awaiting removal from
Australia to Sri Lanka. He claimed that his expulsion to Sri Lanka would
constitute a violation by Australia of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by counsel.
The Facts as Presented
2.1 The complainant contends that, in 1990, aged 14, he and 14 other boys
were recruited by the Tamil National Army, which was working with the Indian
Army, but subsequently escaped. Thereafter, his father sent him to an area
controlled by the Liberation Tigers of Tamil Elam (LTTE). When asked to join
the LTTE, he declined and offered to assist in other ways such as building
bunkers and distributing food. He was thereupon forced to undertake 3 months
training with the LTTE assisting those wounded on the battlefield. In 1995,
when the Sri Lankan Army attacked Jaffna, his father took him to safety in
Colombo, where he stayed with a friend. Without providing further detail, he
states that he was physically abused at a Colombo police station. He then
learned that his father had been detained in Jaffna by the LTTE and later
killed. Following the father's disappearance, he fled to Taipei but was
forced to return to Sri Lanka (no details are provided). After his return,
he claimed that he had learnt that the Sri Lankan authorities were in search
of him, and he fled to Australia.
2.2 The complainant entered Australia on a three month tourist visa on 11
October 1995 and lodged an application for a protection visa on 12 December
1995. Following interviews, the delegate of the Department of Immigration
rejected the claim on 19 November 1997, regarding the complainant as not
credible on account of a variety of inconsistencies between his application
and his interview testimony. The complainant concedes "certain minor
inconsistencies" but argues that they "are not significantly relevant", and
that he was misled by another person who advised him not to disclose
everything. On 12 December 1997, he applied for review of the decision.
2.3 On 28 September 1999, the Refugee Review Tribunal, following a hearing
at which the complainant appeared with interpretation, affirmed the decision
not to grant a protection visa. The Tribunal stated that it "does not attach
importance to minor inconsistencies of detail arising from the
[complainant's] original submission. The Tribunal has, however, carefully
considered more serious inconsistencies and difficulties with the
[complainant's] evidence which are addressed as they arise in this decision.
Apart from a number of lesser discrepancies, there were major difficulties
with key claims." After addressing these issues in turn, the Tribunal found
that: "The extent of implausibilities, inconsistencies and other
difficulties with the Applicant's evidence are such that, considering them
all together, the Tribunal is satisfied that the [complainant's] claims have
been fabricated."
2.4 On 25 October 1999, the complainant requested the Minister of
Immigration under section 417 of the Migration Act 1958 to substitute, in
the public interest, a more favourable decision for that of the RRT. On 8
January 2000, this was rejected. On 15 February 2002, a second request under
section 417 was filed and, on 29 March 2003, rejected. On 2 May 2000, the
complainant was detained in immigration detention for purposes of removal.
On 10 May 2000, a third request under section 417 was filed, which was later
rejected on 24 November 2000. The same day, he lodged a second application
for a protection visa on the grounds that the original application was
invalid. On 22 May 2000, the Department determined that the original
application had been validly made.
2.5 On 22 August 2000, the second application for a protection visa was
rejected as the complainant had not established a real fear of persecution
if returned to Sri Lanka. On 24 August 2000, he applied to the RRT to appeal
the refusal. On 30 October 2000, the RRT cancelled the decision to refuse
the second application for a protection visa, on the ground that the second
application was invalid and that the RRT thus had no jurisdiction. On 8
November 2000, a fourth request under section 417 was made, which was later
rejected on 11 December 2001. On 7 March 2001, the Federal Court dismissed
an appeal against the RRT's decision. On 16 August 2001, the Full Federal
Court dismissed an appeal against the Federal Court's decision. On 7
December 2001 and 19 February 2002, fifth and sixth requests under section
417 were made, which were later rejected on 22 May 2002. On 28 February
2002, the complainant withdrew an application to the High Court for leave to
appeal the Full Federal Court's decision.
2.6 On 7 June 2002, the complainant lodged the present complaint to the
Committee, requesting interim measures to stay his removal. On 10 June, the
Committee declined the request but registered and transmitted the complaint
to the State party for comment. On 13 June 2002, the complainant was removed
to Sri Lanka.
The Complaint
3.1 The complainant contended that his return would violate article 3, and
that he should be returned only if it could be demonstrated beyond
reasonable doubt that the claim was false. He argued that the
inconsistencies in his evidence were not such as to make his testimony
unreliable. He contends that the "RRT has used a "very high standard of
proof as such as beyond reasonable doubt when the standard of proof of
refugee cases is the lowest. It has not carefully considered whether there
is a 'real chance' of the [complainant] being persecuted if he returns to
Sri Lanka. It is apparent from the RRT decision that the Tribunal has acted
biasly [sic] and decided his case against the weight of evidence." The
complainant criticized the reliability of country information before the RRT.
He finally contended that the second RRT decision finding no jurisdiction
was "grossly unreasonable" when the Department had accepted receiving his
second application and interviewed him. The complainant argued that there
were substantial grounds of fearing exposure to torture, contending that the
existence of systematic human rights violations in a country sufficiently
shows such grounds. [FN1]
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[FN1] In support, the complainant refers to Country Reports of the U.S.
State Department of 1996 and 1997, Amnesty international reports of 1996 and
1998, and a variety of newspaper reports.
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The State Party's Observations on Admissibility and Merits
4.1 By submission of 17 November 2002, the State party contests the
admissibility and merits of the complaint. On the claim that the decision to
remove him to Sri Lanka would violate article 3 of the Convention, the State
party submits that his evidence lacked credibility and that the
communication should be held inadmissible as incompatible with article 22,
paragraph 2, of the Convention and Rule 107, paragraph 1(d), of the
Committee's Rules of Procedure. Alternatively, the evidence is not
sufficient to establish a real, foreseeable and personal risk of being
subjected to torture and the communication should be dismissed for lack of
merit.
4.2 The State party submits that refoulement cases, by their very nature,
are about events outside the State party's immediate knowledge and control.
In this context the credibility of the complainant's evidence assumes
greater importance and goes both to the admissibility and merit of the case.
It argues that in the course of determining his entitlement to a protection
visa, the complainant was provided with ample opportunity to present his
case but was consistently unable to demonstrate the bona fides of his claim.
The State party, adopting the RRT's reasons for decision, rejects his
contention that the inconsistencies in his evidence were not material. It
points out that after a detailed examination of all the facts and available
evidence, the Tribunal concluded unequivocally that the complainant lacked
credibility and that his evidence was fabricated.
4.3 The State party submits that the RRT's approach in this case to the
question of credibility is consistent with the principles applied by the
Committee. The latter's jurisprudence establishes the principle that
complete accuracy in the application for asylum is seldom to be expected of
victims of torture. [FN2] Nevertheless, the Committee must satisfy itself
that all the facts invoked by the complainant are 'sufficiently
substantiated and reliable'. [FN3] Similarly, while the RRT does not attach
weight to minor inconsistencies, it is not required to accept on face value
the claims of an applicant although it may give the benefit of the doubt to
an applicant who is otherwise credible and plausible. In this case, the
inconsistencies in the complainant's evidence were extensive and fundamental
to his claim. The State party recalls that, while not bound to follow a
domestic tribunal's findings of fact, the Committee will give considerable
weight to the facts found by such a tribunal. FN4 Therefore, appropriate
weight should be given to the findings of the RRT taking note of the
inconsistencies in the complainant's evidence before the domestic
authorities.
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[FN2] Kisoki v Sweden, Communication No 41/1996, Views adopted on 8 May
1996, at 9.3; Tala v Sweden, Communication No 43/1996, Views adopted on 15
November 1996, at 10.3.
[FN3] Aemei v Switzerland, Communication No 34/1995, Views adopted on 9 May
1997, at 9.6.
[FN4] General Comment on the Implementation of Article 3 in the Context of
Article 22 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 23 November 1997, at 2.
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4.4 The State party submits that its obligations under article 3 of the
Convention were taken into account before making the decision that the
complainant was to be removed from Australia. Under section 417 of the
Migration Act, the Minister for Immigration has a discretionary power to
substitute a more favourable decision. All cases subject to an adverse
decision by the RRT are automatically referred for assessment under
Ministerial Guidelines on stay in Australia on humanitarian grounds. The
Guidelines incorporate the obligation of non-refoulement under article 3 of
the Convention. It was determined that the complainant did not to meet the
requirements of the Guidelines. The complainant also requested the Minister
to exercise his discretion under section 417 on six separate occasions. The
Minister generally does not consider repeat requests under section 417 in
the absence of new information. A number of requests were considered not to
meet the requirements of the Guidelines and not referred to the Minister. In
the case of those requests referred to Minister, he declined to consider an
exercise of his discretion under section 417.
4.5 The State party points out, on this claim, that the complainant was
unable to substantiate his claim for protection despite the opportunity to
file two separate applications for a protection visa. The first RRT decision
found that the complainant's evidence lacked credibility and that some
evidence was fabricated. His claim was also separately assessed against the
Guidelines for stay in Australian on humanitarian grounds, which
incorporates article 3 of the Convention. He did not provide the Committee
with any new or additional evidence or sufficiently substantiate that the
evidence is reliable for the purposes of article 22 of the Convention. Nor
did he present any cogent or convincing argument that there is real and
foreseeable risk of being subjected to torture by Sri Lankan security forces
upon return to Sri Lanka.
4.6 On the claim that there is a consistent pattern of gross violations of
human rights in Sri Lanka and that, on this basis alone, there are
substantial grounds for believing that the applicant would be in danger of
being subject to torture, the State party replies that the complainant
incorrectly applied article 3, paragraph 2. It refers to the Committee's
case law that the existence of a consistent pattern of gross violations of
human rights is not sufficient on its own to meet the requirements of
article 3. While the existence of such conditions may strengthen a
complainant's claim, the Committee's jurisprudence establishes that the
complainant must adduce additional evidence to show that there is something
in his or her personal circumstances which contributes to a personal risk of
torture if returned. [FN5]
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[FN5] X, Y & Z v Sweden, Communication No 61/1996, Views adopted on 6 May
1998, at 11.1;
Kisoki v Sweden, supra, at 9.2; Khan v Canada, Communication No 15/1994,
Views adopted on 15 November 1994, at 12.2; X v Switzerland, Communication
No 27/1995, Views adopted on 28 April 1997, at 10.3; Aemei v
Switzerland,supra, at 9.3 and 9.4; Tapia Paez v Sweden, Communication No
39/1996, Views adopted on 8 May 1997, at 14.2; Tala v Sweden, supra, at
10.1. See also Vilvarajah et al. v United Kingdom, 14 EHRR 248 (judgment of
30 October 1991), at 112.
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4.7 Accordingly, evidence of a pattern of gross violations of human rights
which affects the whole population in the State concerned is insufficient on
its own to establish substantial grounds. Nor is evidence of civil strife or
the breakdown of law and order necessarily sufficient to show substantial
grounds that the particular individual is at risk of being subjected to
torture. The State party thus concludes that to the extent that the
complainant relies on the incorrect test the communication should be ruled
inadmissible ratione materiae as incompatible with article 22, paragraph 2,
of the Convention and Rule 107, paragraph 1(d), of the Committee's Rules of
Procedure.
4.8 With respect to the current country situation, the State party accepts
that in deciding whether to return a person, it must take into account all
relevant factors, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights pursuant to article 3, paragraph
2. It notes that the complainant refers to several reports as evidence that
there is a widespread pattern of gross violations of human rights in Sri
Lanka and argues that this situation has not changed since his departure in
1995, but argues that this material is of little value in an assessment of
the current country situation since the majority of references date from
1997, 1998 and 1999. A single reference to the "Tamil Guardian" of 22 May
2002 concerns the peace agreement and provides no detailed reporting on the
conduct of security forces.
4.9 The State party provides copies of relevant country situation reports.
The State party concluded, having examined the reports on the internal
situation within Sri Lanka, that while some risk of ill-treatment does exist
due to the difficult law and order situation in some regions of Sri Lanka,
the evidence does not support the view that the risk to the complainant is
such as to elevate his personal risk above that experienced by the
population at large. To the extent that the complainant relies upon the
current country situation, there is insufficient evidence that the risk is a
real and foreseeable risk that is personal to him. Accordingly, this aspect
of the communication should be dismissed for lack of merit.
4.10 Concerning the additional claims that (i) the first RRT decision was
tainted by bias and was decided against him despite the weight of evidence
in his favour, and (ii) that the second RRT decision was unreasonable, the
State party submits that this aspect of the communication should be
dismissed as inadmissible ratione materiae on the grounds that it is
incompatible with article 22, paragraph 2, of the Convention and Rule 107,
paragraph 1(d). Further, it argued that the complainant had failed to
properly exhaust domestic remedies in relation to these two issues and this
aspect of the communication should be dismissed pursuant to Rule 107,
paragraph 1(f). Alternatively, this aspect of the communication should also
be dismissed as lacking merit.
4.11 Firstly, the State party argues that the complainant has provided no
argument or evidence to explain how the alleged procedural irregularities
amount to a breach of any of the provisions of the Convention. As the
Committee is not a judicial body with power to supervise domestic courts and
tribunals, it is unclear on what basis the complainant asks the Committee to
review the domestic procedural aspects of his claim to refugee status.
Accordingly, this aspect of the communication should be dismissed as
inadmissible ratione materiae, as incompatible with article 22, paragraph 2
of the Convention and Rule 107, paragraph 1(d).
4.12 Second, the State party contends that this aspect of the communication
must be dismissed for failure to exhaust domestic remedies. The complainant
did not pursue judicial review of the first RRT decision that he now impugns
as both biased and flawed due to a misapplication of the law. Nor did he
pursue an application for special leave to appeal to the High Court from the
decision of the Full Federal Court concerning the RRT's second decision. He
provided no explanation as to why his application for special leave was
withdrawn. Accordingly, he has failed properly to exhaust domestic remedies
in relation to these two issues.
4.13 The State party reiterates that the complainant was provided with two
opportunities to pursue his application for refugee status and enjoyed ample
opportunity to demonstrate the bona fides of his claim. He was interviewed
on arrival and submitted an application for a protection visa on 12 December
1995. On 21 December 1995 he provided a more detailed statement of facts by
way of statutory declaration. All information provided to the Department was
considered during the assessment of his first application. He was
subsequently permitted to file a second application when questions about the
validity of his first application were raised. He has thus had the benefit
of his application for a protection visa being assessed by two different
immigration officials in two separate decision making processes. He
exercised his right to independent merits review of both adverse decisions
and attended hearings before the Refugee Review Tribunal that were fair and
unbiased. He was provided with assistance for the purpose of his application
and subsequent RRT proceedings. He also pursued judicial review of the
second RRT decision. His case was also assessed taking into account the
obligation of non-refoulement under article 3 of the Convention.
Complainant's Comments on the State Party's Submissions
5.1 By letter of 6 January 2003, counsel for the complainant was requested
to make any comments on the State party's submissions within six weeks. By
letter of 30 September 2003, counsel for the complainant was requested to
comment forthwith and advised that failure to do so would result in the
Committee's consideration of the case on the basis of the information before
it. As at the date of the Committee's consideration of the case, no reply
had been received.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. 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.
6.2 Pursuant to article 22, paragraph 5(2)(b), of the Convention, the
Committee is required to ascertain whether the complainant exhausted
domestic remedies in respect of his claim, an issue it determines at the
time of its consideration of the communication. The Committee observes that,
in respect of the RRT's first decision which concentrated on his
credibility, the complainant pursued no appeal to the Federal Court and has
offered no explanation for his failure to do so. In respect of the RRT's
second decision, the Committee observes that the complainant withdrew his
application to the High Court for special leave to appeal, again without
offering any reasons for this course of action. In the circumstances, the
Committee must conclude that the complainant failed to exhaust available
domestic remedies, as required by article 22, paragraph 5(2)(b); the
communication is accordingly inadmissible on this basis.
7. Accordingly the Committee concludes:
(a) that the complaint is inadmissible, and
(b) that this decision shall be transmitted to the State party and to the
complainant.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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