against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 17 November 1997,
Having concluded its consideration of communication No. 57/1996, 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 representative and the State party,
Adopts the following:
Views under article 22, paragraph 7, of the Convention
1. The author of the communication is P. Q. L., a Chinese national currently
under an order of deportation issued by the Canadian immigration
authorities. He alleges that his deportation to China would constitute a
violation by Canada of article 3 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. He is represented by
The Facts as Submitted by the Author
2.1 P. Q. L. was born in 1974 in Viet Nam. His mother is Vietnamese and his
father Chinese. He was three years old when his family fled from the
Vietnamese civil war to China. They left China in 1988, and the applicant
has been living in Canada with his family since then.
2.2 Since 1990, P. Q. L. has been convicted three times for robbery and
sentenced to terms of three months', six months', and, finally, three years'
imprisonment. Immigration Canada issued a deportation order on 9 May 1995,
stating that P. Q. L. was a danger to public order. He should have been
released on 26 April 1996, after serving his sentence of three years'
imprisonment, but the immigration authorities ordered that he be kept in
jail while awaiting expulsion.
2.3 The author appealed to the Immigration Commission against the
deportation order, but the appeal was dismissed on 9 August 1995. He then
asked Immigration Canada to review his case, but on 6 May 1996 the Ministry
of Immigration concluded that there was no risk of him being subject to
torture or inhuman treatment by the Chinese authorities upon return to
China. With this, it is submitted, all domestic remedies have been
3.1 The applicant argues that his life would be in danger should he return
to China. He states that there are substantial grounds for fearing that he
could be imprisoned and ill-treated by the Chinese authorities because of
his past convictions in Canada. He refers to the Chinese Criminal Code,
article 7 of which states that any crime outside China's territory is
punishable, even if it has already been tried in the foreign country
concerned. He further states that acts of robbery are punished by
disproportionate sentences such as 10 years or life imprisonment and even
the death penalty.
3.2 P. Q. L. also states that he fears persecution by the Chinese
authorities because of his Vietnamese origins. He states that minorities'
rights are not respected in China.
3.3 The author refers to the existence of systematic violations of human
rights in China. In support of that assertion, he submits reports from
Amnesty International referring, in particular, to arbitrary imprisonment,
the use of torture and ill-treatment of prisoners and the death penalty in
China, as well as of reports from Human Rights Watch/Asia and other
institutions and to newspaper articles.
3.4 He further states that China is not party to any treaty protecting human
rights which would permit him to address any United Nations body, and that
it would not, therefore, be possible for him to obtain any protection if his
rights were violated in China.
3.5 Finally, the applicant states that China is a completely unknown country
to him because he was very young when he came to Canada. The parting caused
by the deportation would cause irreparable harm to him and his family. The
author produces affidavits from members of his family in support of this
State Party's Observations
4. On 4 November 1996, the Committee, through its Special Rapporteur,
transmitted the communication to the State party for comments and requested
it not to expel the author while his communication was under consideration
by the Committee.
5.1 By a note dated 14 March 1997, the State party challenges the
admissibility of the communication but also addresses the merits of the
case. It requests the Committee, should it not find the communication
inadmissible, to examine the communication on its merits as soon as
possible. It states that the author has not been expelled.
5.2 The State party notes that the communication dwells at length on the
disturbing human rights situation in China but does not demonstrate any link
between the author's personal situation and the general situation in that
country. It recalls that the Committee's case law has established that a
disturbing situation of human rights in a country does not in itself
constitute sufficient grounds for believing that the author of the
communication would be personally at risk of being subjected to torture.
5.3 The State party emphasizes that neither in his communication to the
Committee against Torture nor in his submissions to the Canadian authorities
has the author claimed to have been tortured, arrested, imprisoned or
subjected to ill-treatment in China. He does not claim either to have
participated in political activities or to be known to or sought by the
5.4 The State party notes that the author says he is afraid that, if he is
returned to China, he will be arrested and sentenced to life imprisonment or
to death, or that he will be given a disproportionate sentence or subjected
to inhuman treatment under article 7 of the Chinese Criminal Code, which
deals with the punishment of crimes committed outside China's territory.
First of all, the State party notes that protection under article 3 of the
Convention is not explicitly provided in cases of cruel, inhuman or
degrading treatment, defined by article 16 of the Convention. According to
the State party, therefore, article 3 applies only to the most serious forms
of cruel, inhuman or degrading treatment, in other words, situations which
threaten human dignity. The State party also recalls that the Convention
excludes from the definition of torture "pain or suffering arising only
from, inherent in or incidental to lawful sanctions". Therefore,
imprisonment and the normal conditions of detention do not as such
constitute torture as defined by the Convention and interpreted by the
Committee. Furthermore, the State party explains that information obtained
from the Canadian Embassy in China suggests that the Chinese authorities
will not retry a person for offences such as those committed by the author
in Canada. In any case, the State party notes that article 7 of the Chinese
Criminal Code stipulates that the penalty will be either suspended or
mitigated if the person in question has already been punished in the country
where the criminal act was committed. Since the author has been punished in
Canada for his offences, punishment in China (if any) would be mitigated.
Moreover, according to article 150 of the Chinese Criminal Code, theft
accompanied by threats, the use of force or similar measures is punishable
by 3 to 10 years' imprisonment. According to the State party, sentences of
life imprisonment or the death penalty may be imposed only where there are
aggravating circumstances, if the victim is seriously injured or killed,
none of which apply to the case in question. The State party therefore
maintains that there is no objective proof that offences such as those
committed by the author of the communication would entail the death penalty
or life imprisonment in China. The State also points out that it has not
informed the Chinese authorities of the author's convictions.
5.5 The State party notes that the documentary evidence annexed to the
author's arguments deals, not with the application of article 7 of the
Chinese Criminal Code, but with conditions of imprisonment in China. It does
not support a prima facie conclusion that the author would be accused,
sentenced or imprisoned.
5.6 The State party notes that the allegations submitted by the author to
the Ministry of Immigration are essentially the same as those adduced in
support of his communication to the Committee. It explains that the
potential danger to the author, should he return to China, was examined by a
specially trained official of the Ministry of Immigration, who concluded
that the author's particular circumstances did not constitute grounds for
believing that he would be personally at risk of being subjected to inhuman
treatment or disproportionate sentences or of being executed in China. The
Canadian Government refers to the case law of the Human Rights Committee,
according to which "it is generally for domestic courts to assess facts and
evidence in a particular case, and for appellate courts of States parties to
review the assessment of such evidence by the lower courts. It is not for
the Committee to question the evaluation of the evidence by the domestic
courts unless this evaluation was manifestly arbitrary or amounted to a
denial of justice".[FNa] The State party maintains that no proof of bad
faith, manifest error or denial of justice, that would justify the
intervention of the Committee, has been established in the case in question.
[FNa] Valentijn v. France, Communication No. 584/1994, para. 5.3, decision
dated 22 July 1996.
5.7 In conclusion, the Canadian Government asserts that the communication
should be rejected because it does not establish substantial grounds, prima
facie and on the merits, for believing that the author's expulsion to China
would constitute a violation of article 3 of the Convention. It argues that
the mere demonstration of the situation of human rights in a country is not
in itself sufficient to establish such substantial grounds. According to the
State party, the author's fears that he would be imprisoned or tortured
under article 7 of the Chinese Criminal Codes is not substantiated by the
evidence submitted to the Committee. The State party submits that this
evidence does not provide substantial grounds for believing that article 7
of the Chinese Criminal Code would be applied in his case or that it would
be applied in the manner he alleges and with the consequences he suggests.
The State party asks the Committee to reject the communication because it
does not establish the minimum basis necessary to ensure compatibility with
article 22 of the Convention or, alternatively, because it is without merit.
Comments by the Author
6.1 Counsel for the author alleges that the State party has failed to
evaluate the author's arguments in an objective and equitable way. According
to counsel, international non-governmental organizations have confirmed the
existence of arbitrary detention, ill-treatment of prisoners and regular use
of torture since 1993.
6.2 Counsel submits that the author would be automatically imprisoned,
retried and tortured under the Criminal Code of the Republic of China.
Furthermore, since China is not a party to article 22 of the Convention, the
author would not have recourse to the Committee as a means of obtaining the
necessary protection. Counsel refers to the case of a Chinese national,
expelled by the United States after refusal of his application for political
refugee status, who was fined on his return to China.
6.3 Counsel recalls that, in its observations on the occasion of the
presentation of the report of China, the Committee had expressed concern
about: (a) the failure to incorporate the crime of torture into the domestic
legal system, in terms consistent with the definition contained in article 1
of the Convention; (b) the assertions, drawn to the attention of the
Committee by non-governmental organizations, that torture occurred in China
in police stations and prisons; and (c) the failure to provide access to
legal counsel to persons at the earliest time of their contact with the
authorities and the allegations by some non-governmental organizations that
the incommunicado detention is still prevalent in China. Counsel concludes
that the author has thus sufficient reason to fear for his life if he is
returned to China. She maintains that, even if the facts submitted to the
Committee may give rise to certain doubts, the Committee's role is to ensure
the safety of the individual concerned.
6.4 Counsel submits that, for the following reasons, the author would be
personally at risk if he were returned to China: (a) the author had been
deported from Viet Nam to China when he was three years old; (b) the Chinese
authorities are obviously aware of the reasons why Canada has requested a
travel document in the author's name; (c) the Chinese authorities are also
aware of the author's conviction; (d) the author will be turned over
directly to the Chinese authorities; (e) under article 7 of the Chinese
Criminal Code, another sentence will be imposed; (f) article 150 of the Code
states that the sentence may include the death penalty; and (g) torture is
common practice in police stations and prisons in China.
6.5 Counsel argues that the author's deportation under current circumstances
would violate article 3 of the Convention and that its foreseeable
consequence would be to place him in genuine danger of torture.
6.6 In a subsequent letter, counsel denies that the author is a danger to
the public and argues that the Canadian authorities' decision on that matter
was arbitrary, unreasonable and not supported by any evidence. She also
maintains that the Ministry of Immigration did not give the author's file
completely independent consideration and that the legislation applied was
6.7 Counsel notes that the author has been living with his family since 10
February 1997 and submits documents attesting to his rehabilitation and
reintegration into society.
Additional Observations by the State Party
7.1 The State party maintains that the counsel's allegations that the author
would be automatically imprisoned and re-sentenced are gratuitous. According
to the State party, there is nothing to suggest that the Chinese authorities
are aware of the offence committed by the author and there is no evidence to
support the application and interpretation of article 7 of the Chinese
Criminal Code suggested by counsel. The State party maintains that the
author has failed to establish the existence of substantial grounds for
believing that he would be imprisoned and subjected to torture if he
returned to China.
7.2 With regard to the question of whether the author constitutes a danger
to the public, the State party points out that this is not the issue before
The Committee's Admissibility Decision
8. The Committee notes with satisfaction the State party's statement that,
in accordance with the Committee's request, the author has not been
9. Before considering any of the allegations in a communication, the
Committee against Torture must decide whether or not the communication is
admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do by article 22, paragraph 5,
subparagraph (a), of the Convention, that the same matter has not been, and
is not being, examined under another procedure of international
investigation or settlement. It has noted that all domestic remedies have
been exhausted and that it is not, therefore, precluded from considering the
communication under article 22, paragraph 5, subparagraph (b). The Committee
has found that there is no other obstacle to the admissibility of the
communication and has thus proceeded to consider the case on it merits.
Consideration of the Case on Its Merits
10.1 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.
10.2 The issue before the Committee is whether or not the forced return of
the author to China 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.
10.3 In reaching its decision, the Committee must take into account all
relevant considerations, pursuant to paragraph 2 of article 3, 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 individual 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 sufficient grounds 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.
10.4 The Committee notes that the author claims the protection of article 3
on the grounds that he is in danger of being arrested and retried for the
offences which he committed in Canada. However, he does not claim that he
has participated in political activities in China, nor that he belongs to a
political, professional or social group targeted by the authorities for
repression or torture.
10.5 The Committee adds that, according to the information in its
possession, there is no indication that the Chinese authorities intend to
imprison the author because of his Canadian convictions. On the contrary,
the State party has stated that judicial proceedings are not undertaken in
such cases. Moreover, the Committee considers that, even if it were certain
that the author would be arrested on his return to China because of his
prior convictions, the mere fact that he would be arrested and retried would
not constitute substantial grounds for believing that he would be in danger
of being subjected to torture.
10.6 Furthermore, the Committee refers to the documents submitted by the
author, in support of his request for repeal of the decision to revoke his
permanent resident status, which allegedly provide proof of his
rehabilitation and reintegration into Canadian society. The Committee notes
that article 3 of the Convention authorizes it to determine whether return
would expose a person to the danger of being subjected to torture but that
it is not competent to determine whether or not the author is entitled to a
residence permit under a country's domestic legislation.
10.7 The Committee is aware of the seriousness of the human rights situation
in China, but, on the basis of the above, considers that the author has not
substantiated his claim that he will be personally at risk of being subject
to torture if he is returned to China.
11. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, is of the view that the situation as established by
the Committee does not reveal a breach of article 3 of the Convention.
[Done in English, Russian and Spanish, the French text being the original