Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 696/2015 * , **

Communication submitted by:R.P. (represented by counsel, Rabinderdei Nandoe)

Alleged victim:The complainant

State party:Netherlands

Date of complaint:27 July 2015 (initial submission)

Date of adoption of decision:4 December 2017

Subject matter:Non-refoulement; prevention of torture

Substantive issue:Deportation to Sri Lanka

Procedural issue:Non-exhaustion of domestic remedies

Article of the Convention:3

1.1 The complainant is R.P., a Sri Lankan national of Tamil ethnicity, born on 26 August 1981. He is currently awaiting deportation to Sri Lanka. He claims that his deportation by the Netherlands would violate his rights under article 3 of the Convention. The complainant is represented by counsel, Rabinderdei Nandoe.

1.2On 13 August 2015, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant while the communication was being considered.

The facts as presented by the complainant

2.1The complainant was born in Batticaloa, Sri Lanka, and is of Tamil ethnicity. He owned a computer shop and worked there with his brother. In 1989, his sister was taken by the Sri Lanka Army, raped and executed because of her alleged membership in the Liberation of Tamil Tigers of Eelam (LTTE). Consequently, the family was regarded as being an “LTTE family”. In 2002, the complainant’s brother was arrested by the Army, but later released. After his brother’s release, the family complained about his detention to a human rights organization, but had to withdraw it owing to threats from the Army.

2.2In May 2008, the complainant was arrested and detained in a nearby army camp by the Special Task Forces. The Forces had arrested all the young people in the area on suspicion of LTTE involvement. He was accused of being an LTTE supporter and of financing and providing assistance to the organization. The complainant was interrogated four times, with each one lasting about one and a half hours. During the interrogations, he was kicked with army boots and beaten with the back of rifles. After two days, his father managed to get him out of the camp. The complainant was required to report to the authorities once a week. He was given a letter written in Sinhalese, which he could not read. He had to show this letter every time he reported to the authorities. On an unspecified date, the complainant was released from the reporting duty.

2.3The complainant was again arrested and detained in an army camp by the Special Task Forces in November 2008. He was interrogated twice, in a threatening way, and released the same day. He was asked to be an informant for the Forces, but he did not respond to the request. He was arrested a third time in August 2009, because the Special Task Forces had apprehended his friend who had alleged that the complainant was involved with LTTE. Later, the complainant found out that his friend had hidden weapons near his house. The complainant was again threatened and intimidated by the Forces and detained for two days. He was told not to leave the area and to be available for further inquiries. After his release, the complainant lived with several relatives. In December 2009, some members of the Karuna Group (the Tamil Peoples Liberation Tigers) came looking for the complainant at his work and his house, but did not find him. They damaged windows and the front gate of his house and injured the complainant’s brother in his shop. The brother reported the damage to the police, but as far as the complainant knows, the police did not do anything. On 27 March 2010, the complainant was arrested and detained for seven days by the Karuna Group. The complainant states that he was subjected to serious ill-treatment by officers of the Special Task Forces (with whom the Karuna Group collaborated), who caused him physical and psychological harm. They hit him with a flexible tube on his back and kicked him multiple times in his stomach. The complainant had had problems with his back in the past, but they became worse following this ill-treatment. Because of the injuries suffered, he is now in constant pain, mostly in the lower part of his back and hips and he cannot sit for more than 30 minutes in one position. Moreover, he has several small scars on his back. He was held in the Karuna camp, but he managed to escape after a week in detention. The complainant states that he was arrested by the Karuna Group because they thought that he had helped to hide the above-mentioned friend’s weapons.

2.4The complainant fled Sri Lanka on 8 June 2010 with a Sri Lanka passport, which was arranged by a travel agent. The travel agent had arranged a visa for India and Nigeria. After a few months in India, the complainant was told by the travel agent that he had to come back to Sri Lanka before continuing his journey to Nigeria. He was picked up at Colombo airport by the travel agent and taken to a hotel. Later, he took a flight to Nigeria. Upon his arrival in the Netherlands on 2 October 2010, he reported to the Dutch authorities in order to submit an application for asylum. On 9 October 2010, the complainant applied for asylum. Thereafter, he was transferred to a refugee reception centre. On 15 August 2011, the Immigration and Naturalization Service (IND) rejected his asylum application. It concluded that the complainant’s story lacked credibility. In addition, a medical doctor examined him and concluded that he did not have any problems with memory or concentration and that he was capable of producing consistent and coherent statements.

2.5On 12 September 2011, the complainant appealed the negative decision of IND before a court. On 30 December 2011, the complainant was examined by the Medical Examination Commission of Amnesty International, which concluded that it was plausible that the scars on the complainant’s body and his health problems (physical and psychological) could have been caused by ill-treatment as stated by the complainant. The complainant submitted this information to the court in March 2012. On 21 August 2012, the court decided in favour of the complainant and ordered IND to re-examine his asylum case given the Medical Examination Commission’s conclusions. It also considered that the decision of IND was not sufficiently reasoned.

2.6On 19 September 2012, IND appealed the court’s decision of 21 August 2012 before the Council of State. On 25 August 2014, IND’s appeal arguments were found by the Council to be justified. In essence, the Council found that the Medical Examination Commission did not establish that the injuries on the complainant’s body were caused as a result of the alleged ill-treatment by the Sri Lankan authorities and that the complainant’s story and statements were vague and contradictory.

2.7On 15 April 2015, the complainant submitted a second asylum application. On 21 April 2015, IND rejected the second asylum application, because the complainant did not provide any new facts or new information. On the same day, the complainant appealed IND’s decision before the court. On 18 May 2015, the court rejected the complainant’s appeal as unfounded. On 26 May 2015, the complainant sent an appellate complaint by post. It was received on 27 May 2015. On 16 June 2015, the Council of State rejected the complainant’s appeal on the grounds that it was not submitted within the prescribed time limit set by the law.

2.8The complainant claims to have exhausted all available domestic remedies.

The complaint

3.1 The complainant claims that there are substantial grounds for believing that he will be in danger of being subjected to torture if returned to Sri Lanka, on the basis of the following:

(a)He is a young Tamil man from the Eastern part of Sri Lanka;

(b)He left Sri Lanka illegally;

(c)He would be returning from the Netherlands, a centre for LTTE fundraising;

(d)He has lodged an asylum claim abroad;

(e)He has a previous record as a suspected or actual member or supporter of LTTE;

(f)He escaped from detention at the Karuna Group camp;

(g)He has scars on his body caused as a result of ill-treatment;

(h)He was asked to be an informant for the Special Task Forces.

State party’s observations on admissibility

4.1By note verbale of 13 October 2015, the State party challenged the admissibility of the complaint. The State party submits that the complainant lodged a second asylum application on 15 April 2015, which IND denied on 21 April 2015. The complainant lodged an application for judicial review of the IND decision, which The Hague District Court rejected on 18 May 2015. The State party notes that the complainant appealed that judgment before the Council of State; however, the appeal was lodged late. The State party alleges that the Council of State provided the author with the opportunity to substantiate the late submission, but he failed to do so. Thus, the Council of State declared the appeal inadmissible on 16 June 2015, as a result of which the proceedings on the complaint’s request for residence status came to an end. Accordingly, pursuant to article 22 (5) (b) of the Convention, the complaint is inadmissible due to failure to exhaust all available domestic remedies.

Complainant’s comments on the State party’s observations

5.1In his submission dated 7 January 2016, the complainant disputed the State party’s assertion that the appeal was lodged late. The complainant referred to his original complaint, in which he explained that the appeal had been mailed on time, however, the Council of State received it one day late.

5.2The complainant also asserted that the appeal procedure at the Council of State is not an effective remedy, because it does not allow for waiting for the outcome of the decision. The complainant referred to a decision of the European Court of Human Rights of 11 January 2007, in which the Court decided that the particular case was admissible, even though the complainant did not appeal to the Council of State because he thought that it was ineffective.

5.3The complainant notes that, under article 30 (a) of the Dutch Alien Act, the Council of State rejects appeals that do not provide new facts of information. Therefore, the Council of State would only decide on the formal question of whether the complainant’s supplementary medical report and further information on conditions in Sri Lanka constitute new evidence, and does not examine the substance of the case.

5.4Finally, the complainant refers to a copy of an email that his counsel received unintentionally, concerning his first asylum application. In the email, an IND employee advises the Secretary of State not to appeal the 21 August 2012 court decision, because IND had not discussed the credibility of the complainant’s statements regarding his two arrests, therefore those arrests should be considered as credible. The employee wrote that he regretted that the court had not addressed the connection between the complainant’s scars and his statements about the cause of the scars, as well as possible violation of article 3 of the European Convention on Human Rights, considering the Tamil ethnicity of the complainant.

State party’s observations on the merits

6.1In a submission dated 28 October 2016, the State party provided information on the merits of the case. On 2 October 2010, the complainant entered the Netherlands and reported to the Dutch authorities in order to submit an application for asylum. He was given time to rest and prepare his asylum application. On 8 October 2010, a medical examination was carried out to determine whether the complainant could be interviewed. On 9 October 2010, the complainant submitted his application for a temporary asylum residence permit and, on that same day, the first interview was held. During the second interview on 11 October 2010, the complainant was given the opportunity to elaborate on his asylum application. On 27 January 2011 and on 1 March 2011, a supplementary interview was held about the complainant’s reasons for leaving his country of origin. Reports were drawn up of the interviews, which were conducted in Tamil with the help of an interpreter. The complainant was given the opportunity to make substantive changes and/or additions in writing to the reports of the interviews, which he did by submitting corrections and additions on 10 October 2010, 13 December 2010 and 10 April 2011. On 14 May 2011, the complainant was given written notification of the State party’s intent to deny his asylum application. He was given the opportunity to respond in writing to the notification of intent, which he did by letter of 27 June 2011. The asylum application was denied by decision of 15 August 2011.

6.2On 12 September 2011, the complainant lodged an application with The Hague District Court for judicial review of the decision denying asylum. The application for review was heard in open court on 27 June 2012. On 21 August 2012, the court declared the application for review well founded.

6.3On 19 September 2012, the State Secretary for Security and Justice lodged an appeal against the 21 August 2012 court decision with the Administrative Jurisdiction Division of the Council of State. By judgment of 25 August 2014, the Council of State declared the appeal well founded and overturned the decision of The Hague District Court. With that judgment, the complainant’s domestic remedies were exhausted.

6.4On 15 April 2015, the complainant submitted a new application for a temporary asylum resident permit. He was interviewed on the same day in Tamil through an interpreter. On 17 April 2015, the complainant was notified that the State party intended to deny the asylum application. On 20 April 2015, he provided his written opinion about the notification of intent to deny his asylum application. On 21 April 2015, the complainant’s second asylum application was denied.

6.5On 21 April 2015, the complainant applied to The Hague District Court for review of the decision. The application for review was heard in open court on 12 May 2015. On 18 May 2015, the court declared the application for review unfounded.

6.6On 27 May 2015, the complainant lodged an appeal with the Administrative Jurisdiction Division of the Council of State. By judgment of 16 June 2015, the Council of State declared the appeal inadmissible.

6.7Since the conclusion of these proceedings the complainant has not submitted an application for a residence permit in the Netherlands.

6.8The State party notes that due care was exercised throughout the asylum proceedings in respect of the complainant and due account was taken of article 3 of the Convention. The complainant was interviewed several times during the asylum proceedings and questioned on the facts and circumstances of his departure from Sri Lanka and on the reasons why he believed he would be treated contrary to article 3 of the Convention if he returned to Sri Lanka.

6.9 The State party also notes that, although the human rights situation in Sri Lanka gives cause for concern, in view of information from various public sources, the State party considers that there is no reason to conclude that expulsion to Sri Lanka would, in itself, involve a risk of treatment contrary to article 3 of the Convention. There is no reason to assume that every Tamil, whether or not they have had links in the past with LTTE, will be subjected to treatment contrary to article 3 of the Convention upon returning to Sri Lanka. Various decisions by the Committee indicate that it, too, remains seriously concerned about continued and consistent allegations of widespread use of torture and other cruel, inhuman or degrading treatment perpetrated by State actors — both the military and the police — which have continued in many parts of Sri Lanka since the conflict ended in May 2009. However, the Committee has no reason to hold that the general situation is such that a real and foreseeable risk of being subjected to torture in Sri Lanka may be presumed. Even if it were probable that the complainant had been subjected to torture, the question remains whether there is a substantial risk of persecution for the complainant. Alleged torture in the past cannot automatically constitute risk of torture today, it is only one element in determining the present risk of torture for the complainant. Other relevant factors include the lapse of time, the situation in the country of origin and the complainant’s personal circumstances. The complainant has an obligation to provide sufficient evidence substantiating that such a risk is present and personal.

6.10The jurisprudence of the European Court on Human Rights indicates that the above-mentioned risks can be taken into account when assessing asylum applications by Sri Lankan Tamils. The Court has also indicated that, since the conflict in Sri Lanka has ended, the level of adverse interest in failed Tamil asylum seekers returning to the country has decreased. There is a risk of treatment contrary to article 3 of the European Convention on Human Rights only if the alien can demonstrate that the authorities are interested in him or her specifically, for example because the alien committed a criminal offence or was an influential member of LTTE. The Court ruled that although States parties have a duty to investigate the risk of complainants being subjected to treatment contrary to article 3 of the European Convention on Human Rights if deported, it must be in a position to assess the asylum seeker’s individual situation, which can be impossible when the statements provided to substantiate the asylum request give reason to question his or her credibility.

6.11The State party does not consider that the specific reasons the complainant gave for leaving Sri Lanka are credible, namely that he had been arrested by the Sri Lankan authorities and the Karuna Group and was still wanted in connection with his statement that his friend had hidden weapons in the garden of his parents’ home.

6.12The State party emphasizes that the complainant’s statements about his first arrest in 2008 and his second arrest in 2009 are credible. On the basis of the file, it has been satisfactorily established that the complainant had difficulty with the chronology of the alleged events in his account in support of his asylum application. Apart from the chronology, his other statements regarding those events were consistent and the State party therefore considers his account of the first two arrests credible. The State party also presumes that he was assaulted or tortured by the Sri Lanka Army during his first arrest. However, this does not mean that the complainant would be at risk of treatment contrary to article 3 of the Convention upon returning to Sri Lanka.

6.13The State party gives no credence to the account of the third arrest by the Sri Lanka Army in 2009 or the arrest by the Karuna Group in 2010 because the complainant’s friend had allegedly hidden weapons in the vicinity of his parents’ home, for the following reasons:

(a)During his second interview, the complainant made no mention of the weapons hidden by his friend near his house or their connection to his arrest. He explicitly stated that he did not know what his friend had done and why he had been imprisoned. Only after the interview, the complainant mentioned the hidden weapons and their connection to his arrest;

(b)The complainant’s explanation for withholding the information, namely that he was afraid that the report of the interview would be sent to the Sri Lankan authorities, is unconvincing, because he made other accusations against the authorities, for instance the allegations of torture and assault in 2008, and the rape and killing of his sister;

(c)The complainant not only withheld the information, but also made contradictory statements about how and when he found out that his friend had hidden weapons;

(d)There were a number of inconsistencies in key elements of the complainant’s account that make it implausible that he is wanted by the authorities for alleged involvement in hiding weapons for LTTE;

(e)Other things, such as his easy escape when he was supposedly held by the Karuna Group, the fact that he was able to leave the country on two occasions with a legally acquired passport and to return once without difficulty, led the State party to conclude that there were significant inconsistencies, implausible statements and lack of clarity on issues that were relevant to assessing a claim. Those statements would be pertinent to the Committee’s deliberations as to whether the complainant would be at risk of torture were he to return to Sri Lanka.

6.14Regarding the medical examination conducted by Amnesty International (in the Medical Research Group report), the State party notes that Amnesty International doctors were unable to determine with certainty whether the scars that the complainant attributed to assault during his fourth arrest were in fact the result of mistreatment by members of the Karuna Group in 2010. Amnesty International concluded that its findings with respect to the two scars “could” be consistent with the event described. The State party also notes that, given the wording in the Amnesty International report to explain the causality of the complainant’s injuries, leaves open the possibility that the scars could have been sustained differently from the way the complainant described. Especially considering that the complainant was examined more than a year after he entered the State party, after such a long period, it is no longer possible to determine how old the scars are.

6.15Regarding the supplementary medical report (from the Institute for Human Rights and Medical Research), submitted by the complainant with his second application for asylum, the State party considers that the cautiously formulated conclusions of the report do not establish that, in the complainant’s case, there is a genuine causal relationship between his medical problems and his inability to give a comprehensive account. The Institute for Human Rights and Medical Research did not examine the complainant in person and it describes medical complaints that were already known from the complainant’s file. Nonetheless, the complainant’s inability to give a complete and consistent account of less important matters and certain details has not been held against him. However, what has been held against him is that he failed to report essential parts of his account immediately and that he made contradictory, vague and implausible statements regarding those matters.

6.16The State party considers it significant that the complainant maintains that he was never involved with LTTE. The complainant stated that he was only forced to pay money to LTTE and hang decorations in his shop on the occasion of Great Heroes Day like other Tamils and shopkeepers. He stated that he never took part in the conflict in any way. Furthermore, the complainant stated that he was released after a short time after being arrested on each occasion, which suggests that he was not of any particular interest to the authorities.

6.17Regarding the complainant’s claim that he was asked to be an informant for the Sri Lankan authorities when he was first detained in 2008, the State party notes that there is no evidence that his refusal got him into trouble with the authorities, apart from the arrests in 2008, after which he was soon released. The fact that he was issued a national passport in September 2009 is also evidence that he was not the subject of adverse attention from the authorities at that time and that he did not leave the country illegally, as he claims.

6.18The State party notes that, even though the complainant’s sister was taken by the Sri Lanka Army in 1989, and raped and murdered for alleged involvement in LTTE, it does not mean that the complainant would necessarily experience problems in relation to those events if he were to return to Sri Lanka. The same applies with respect to his brother’s alleged arrest in 2002. There is no evidence that his brother or sister were actually involved with LTTE or the armed conflict. The State party also notes that every Tamil who comes from the region that was held by LTTE has some direct or indirect link, such as through family members, with LTTE. That does not mean that every Tamil is at risk of treatment contrary to article 3 of the Convention against Torture.

Complainant’s comments on the State party’s observations on the merits

7.1In his submission dated 13 April 2017, the complainant provided his comments to the State party’s observations. The complainant challenges the State party’s reference to judgments handed down by the European Court of Human Rights from 2011 to 2015, which indicate that (a) since the conflict in Sri Lanka ended, the level of adverse interest in failed asylum seekers returning to the country has decreased; and (b) there is a risk of treatment contrary to article 3 of the European Convention only if the alien can demonstrate that the authorities are interested in him or her specifically, for example, because he or she committed a criminal offence or was an influential member of LTTE. The complainant notes that those statements do not correspond to the relevant information about the situation in Sri Lanka for returning Tamils. In an updated submission to the Human Rights Committee for its consideration of the fifth periodic report of Sri Lanka in October 2014, Freedom from Torture stated that 96 per cent of victims of torture were of Tamil ethnicity. The key factor that appeared to have led to the detention and torture of those men and women by the authorities was a real or perceived connection to LTTE — either their own connection and/or that of a family member or acquaintance. Those with personal involvement with LTTE had typically participated in a non-combat capacity, for example by providing services. Freedom from Torture concluded that Sri Lankan Tamils, who in the past had a real or perceived association at any level with LTTE, but were able to leave Sri Lanka safely, now faced a risk of torture on return. The complainant lists other reports that show that human rights violations and torture, in particular, have increased in the post-war period. The complainant argues that all the reports indicate that, since the conflict in Sri Lanka has ended, the level of adverse interest in failed Tamil asylum seekers returning to the country has not decreased. In fact, they show that a mere suspicion of having any ties to LTTE — irrespective of how weak, old or personal — is enough to attract the adverse interest of the authorities upon return.

7.2The complainant underlines that the Amnesty International, Medical Research Group report indicates that it is plausible that he was subjected to torture in Sri Lanka in the past. The report concludes that it is likely that most of the scars and physical problems described are related to the complainant’s statements and that it is also likely that the psychological problems are also related to his statements. The complainant refers to the case of M.C. v. the Netherlands, in which the Committee ruled that the medical report from the Amnesty International, in which the scars were considered to be consistent with the complainant’s statements, was a contributing factor in its decision, although IND decided that the complainant’s statements were not credible, were vague and contrary to the general information about the country of origin.

7.3The complainant rejects the State party’s claim that due care was exercised throughout the Dutch asylum procedures in respect of the complainant and due account was taken of article 3 of the Convention. He claims that due care was not exercised in his second asylum procedure, because IND decided to not reconsider their previous refusal to grant a temporary asylum residence permit to the complainant due to the absence of new information in the file. The Hague District Court upheld the decision of IND. However, the complainant did produce a supplementary medical report (from the Institute for Human Rights and Medical Research), which concluded that his psychological problems interfered with his capacity to produce full, coherent and consistent asylum statements during the interviews with IND. In the report of the Institute for Human Rights and Medical Research, it is stated that asylum seekers who have been subjected to torture or other extreme violence often have difficulties in speaking about that violence for various reasons, including memory and concentration. Fear, shame and distrust are also important factors. Asylum seekers often try to forget or to keep silent about the violence or they may have lost (a part of) their memory.

7.4The complainant explains that he did not tell IND about the weapons hidden by his friend, because he was afraid that it would associate it with him and involvement in terrorist activities and that would have harmed his asylum application and result in his expulsion to Sri Lanka. He states that, although he did not say it during the interview on 11 October 2010, he later provided the information in the written corrections and additions to the report that he submitted on 13 December 2010, as was allowed by Dutch domestic law.

7.5The complainant notes that his so-called easy escape from Karuna Group was due to the fact that he was held in an abandoned house rather than in a regular detention facility. Moreover, members of Karuna Group were mostly ethnic Tamils and they might have felt sorry for him and turned a blind eye to his escape.

7.6Regarding his departure for India and subsequent return to Sri Lanka in 2010, the complainant explains that he was able to do that because his father paid 1.5 million Sri Lankan rupees to a human smuggler to arrange for his passport and visas and to bribe officials at the border. He cites several reports, which describe cases in which even high- profile LTTE members were able to leave Sri Lanka by paying bribes. During his journey, he was always accompanied by a human smuggler and people always met him at airports to make sure he did not have any problems with the authorities. The fact that he was able to leave, return and leave again does not indicate that he was not wanted by the Sri Lankan authorities.

Additional comments by the complainant

8.1On 14 and 18 April 2017, the complainant submitted additional comments. The complainant rejects the State party’s assertion that he was never involved with LTTE. He states that during the ceasefire between LTTE and the Government of Sri Lanka (2002–2006), he decorated the area around his shop with LTTE paraphernalia, such as flags and posters, whenever there was an LTTE event. He also states that his activities were filmed by the Sri Lankan authorities. He further states that he paid money to LTTE. When the ceasefire ended, he was confronted with these activities in 2008 and accused of being an LTTE sympathizer. Those activities are regarded as LTTE involvement by the Sri Lankan authorities.

8.2The complainant also rejects the State party’s claim that, since he was issued a passport, there was no ban preventing him from leaving his place of residence. The complainant refers to the Netherlands, Ministry of Foreign Affairs country report on Sri Lanka dated 2 October 2014, which states that it is possible to buy falsified documents, stamps, stickers and forms in Sri Lanka. Besides, the culture of corruption and the use of altered registration and archiving procedures is widespread and increases the risk of inaccuracy and fraud at the registration and issuance of documents. Therefore, the fact that a passport was issued to him, does not indicate that there was no ban prohibiting him from leaving the area or his residence.

8.3The complainant also challenges the State party’s argument that the Sri Lankan authorities are aware that many Tamils — from the north and east of Sri Lanka — returning from Western countries, left Sri Lanka for economic reasons. The complainant believes that the authorities in Sri Lanka will assume that he applied for asylum abroad and that he would be regarded as a traitor because he would have told the Western authorities about the human rights violations in Sri Lanka. The Centre for Post-doctoral Education (CPO) in the Netherlands publishes the Government’s report on international human rights procedures every year. The report contains cases pending before the Committee against Torture, including that of the complainant. The information is available on the Internet and, therefore, the Sri Lankan authorities can access it. The complainant thinks this will increase the risk of treatment contrary to article 3 of the Convention if he returns to Sri Lanka.

State party’s additional observations

9.1On 1 August 2017, the State party submitted additional observations on the merits of the communication. It reiterates that the complainant needs to substantiate that there is a foreseeable, real, personal and present risk of torture upon his return to Sri Lanka. The State party refutes the complainant’s contention that it uses outdated jurisprudence and information when assessing asylum applications submitted by Sri Lankan Tamils. It notes that both IND and the domestic courts assessed the asylum seeker’s account carefully in the light of up-to-date country of origin information. While noting that the situation of Tamils, in general, and former LTTE members, in particular, remains a cause for concern, the State party emphasizes several positive developments that have taken place in Sri Lanka. The Government of Sri Lanka has made incremental progress in addressing impunity for human rights violations. It has established a committee to examine allegations of torture and take preventive measures. The Government has pledged to repeal the Prevention of Terrorism Act, under which former LTTE members were often detained, and replace it with legislation that complies with international standards. Although the human rights situation in Sri Lanka still gives cause for concern, in view of information from public sources, there is no reason to assume that every Tamil, whether or not they had links to LTTE in the past, will be subjected to treatment contrary to article 3 of the Convention upon returning to Sri Lanka. The State party is therefore of the view that the information in recent reports and that contained in reports cited by the complainant do not provide any reason to assess asylum applications by Tamils differently from what is set out in its observations of 28 October 2016.

9.2The State party notes the complainant’s explanation as to why he did not provide information about the weapons that his friend had allegedly hidden. It also notes that the complainant again changed his statement in that regard and it considers that, if anything, its credibility of that part of the complainant’s account has been further reduced.

9.3The State party remains unconvinced by the complainant’s statement that his situation was different from that of his family members due to his earlier arrest and the fact that he had hung decorations associated with LTTE activities in his shop. The State party considers it unlikely that the Sri Lankan authorities would not have checked about involvement by all the complainant’s family members in the investigation they carried out following the discovery of hidden weapons.

9.4As to the complainant’s claim that it did not say anything about Amnesty International’s medical findings concerning his psychological problems, the State party reiterates that the complainant’s inability to give a complete and consistent account of less important matters and certain details was not held against him. However, it held the fact that he failed to immediately report essential parts of his account against him and that he subsequently made contradictory, vague and implausible statements regarding those matters, even though they had had a major impact on him and were his main reason for leaving Sri Lanka.

9.5Finally, the State party notes that, even if it were to accept the complainant’s claim that he was subjected to ill-treatment during his third and fourth alleged arrests, it does not necessarily mean that, more than seven years later, there is a real risk that he will be subjected to such treatment upon returning to Sri Lanka. In view of the significant amount of time that has elapsed, the fact that the complainant was not involved in hiding the weapons and that no evidence has come to light that he actively supported LTTE in Sri Lanka or in the diaspora or that he is otherwise considered as a dangerous individual who could reignite the conflict in Sri Lanka, the State party does not consider it likely that the complainant will encounter problems like that with the Sri Lankan authorities if he returns to his country of origin.

Issues and proceedings before the Committee

Consideration of admissibility

10.1Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (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.

10.2The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any complaint unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that, in the present case, the State party argues that the complainant has not exhausted all available domestic remedies because he failed to appeal the denial of his asylum application before the Administrative Jurisdiction Division of the Council of State. The Committee also notes the complainant’s arguments that he mailed his appeal on the last day of the deadline and that the Council of State received it the next day. The Committee further notes that the Council of State gave the complainant the opportunity to substantiate the late submission of the appeal, however, the complainant failed to convince the Council of State that there was a valid reason for missing the deadline for the appeal.

10.3The Committee notes the complainant’s argument that the appeal procedure of the Council of State is an ineffective remedy because it does not automatically suspend the expulsion proceedings and it rejects appeals that do not provide new facts. Therefore, an appeal to the Council of State would only be a formality rather than a procedure that would lead to a remedy.

10.4The Committee considers that mere doubts about the effectiveness of a remedy do not absolve the complainant from seeking to exhaust such remedy. It is even more difficult to be persuaded by the argument of ineffectiveness, after one has failed to seek the remedy due to his or her own tardiness, which cannot be attributed to the State party. The Committee concludes that, in the circumstances, the complaint is inadmissible for non-exhaustion of domestic remedies, pursuant to article 22 (5) (b) of the Convention.

11.The Committee therefore decides:

(a)That the complaint is inadmissible under article 22 (5) (b) of the Convention;

(b)That the present decision shall be communicated to the complainant and to the State party.