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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 13 November 1998,
Adopts the following:
Decision on admissibility
1. The author of the communication is P.S.S., an Indian citizen currently
residing in Canada where he is seeking asylum. He claims that his forced
return to India would constitute a violation by Canada of article 3 of the
Convention against Torture. He is represented by counsel.
Facts as Presented by the Author
2.1 P.S.S. was born in 1963 in Chandigarh, India. In 1982, he became a
member of the All India Sikh Students Federation (AISSF). On an unspecified
date, P.S.S. and other men of that group were pointed out to hijack an
aircraft, divert it to another country and hold a press conference in order
to highlight the situation of the Sikh population in Punjab, India. The
hijacking was planned in reaction to an assault by the Indian Government
launched in June 1984 upon Darbar Sahib, also known as the Golden Temple in
Amritsar, Punjab. On 5 July 1984, P.S.S. and the other men hijacked an Air
India aircraft in Srinigar which carried about 250 passengers and diverted
it to Lahore in Pakistan, where they held a press conference. Thereafter the
hijackers released all the persons on board the aircraft and surrendered
themselves to the Pakistani authorities. According to the author, with the
exception of two minor injuries, no one was harmed or seriously injured in
the course of the hijacking.
2.2 In January 1986 the author was convicted of hijacking and sentenced to
death by a Pakistani court. In 1989, the death sentence was commuted to life
imprisonment. On 21 March 1994 the author was released from prison on
medical grounds. He remained in Pakistan until 21 January 1995, when he was
granted full parole. He and the other hijackers were given three months to
leave the country.
2.3 In January 1995 the author applied to the Canadian immigration
authorities for entry into the country but his application was rejected.
Later on he travelled to Canada with a false Afghan passport and under the
false name of B.S. In a form which he was required to fill in when entering
the country he denied having been convicted of a crime. In September 1995 he
was arrested by the Canadian Immigration Service and placed in custody. On
27 October 1995, a conditional deportation order was issued by the
Immigration and Refugee Board. He was also given notice under section 46.01
(e) of the Immigration Act that the Minister of Citizenship and Immigration
intended to certify the author as being a danger to the public in Canada.
Such certification would render the author ineligible to make a refugee
claim in Canada.
2.4 The author was certified as a danger to the public in June 1996. He then
challenged the certification by judicial review on the basis of procedural
unfairness. The Federal Court rescinded the certification on those grounds.
In October 1996 a new certification process started as a result of which the
Minister certified, by decision of 30 April 1997, that the author was a
danger and an order was issued to remove him from Canada on 5 May 1997.
The Complaint
3.1 The author argues that he would be in serious danger of being subjected
to torture if he was deported to India. He submits that those persons who
are known to have acted for Sikh nationalists are persecuted by the
authorities in Punjab and that although violence in Punjab is said to be
reduced, members of the AISSF and their families continue to be harassed in
Punjab. He asserts that two of the hijackers who were released from custody
and attempted to return to India were killed by the Indian Border Security
Forces after they crossed the border. On 27 June 1996, K.S.S., a member of
the AISSF who was involved in a second hijacking in August 1994 was found
dead in a canal in Rajastan. Presumably K.S.S. either was extrajudicially
executed or died as a result of torture by the Punjab police.
3.2 He states that because of his involvement in the hijacking the author's
family has been persecuted by the Punjab police. They were arrested after
the hijacking took place and his mother has repeatedly been harassed by the
Punjab police who questioned her about other Sikh nationalists and
threatened her with detention and disappearance. In October 1988 she flew to
Canada where she was granted refugee status in 1992. The author also submits
that his brother, T.S.S., was held in illegal detention and subjected to
gross ill-treatment by the Punjab police between 26 March and 2 May 1988.
During that time he was questioned about his brother and the latter's
friends. He was released without charge and granted political asylum in
Canada in 1992.
3.3 The author further argues that there are grounds for assuming that he is
wanted in India. He reports that the names of those persons who have come to
the attention of the authorities are contained in a list which circulates
among the police forces in India. Persons who appear on that list are
routinely taken into custody and are targets for illegal detention, torture
and extortion if they are believed to have worked for armed Sikh
nationalists. Notwithstanding the fact that he almost served 10 years in
jail, the author believes that his name will appear on such a list. The
author also notes that apparently Indian authorities monitor the return to
India of those persons who failed to obtain political asylum in other
countries.
3.4 The author argues that he could not escape the danger of being subjected
to torture by fleeing to other parts of India. Reportedly the Punjab police
has made several forays into other Indian States in order to pursue their
targets. It is further stated that neither in Pakistan would he be safe.
3.5 The author claims that both the certification of his being a danger to
the public and the decision on his removal from Canada constitute a
violation of article 3, paragraph 1 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. The certification
renders him ineligible to make an application to the panel of the Convention
Refugee Determination Division of the Immigration Review Board for refugee
status under the United Nations Convention on Refugees of 1951 and as a
result exposes him to the risk of removal from Canada. He further submits
that there are no reasons which would justify the certification since he is
no longer a member of the AISSF and, apart from the 1994 hijacking, he did
not commit any other crime or criminal offence. As to the decision to remove
him from Canada, the author draws attention to the fact that India has not
ratified the Convention against Torture and, therefore, he would not have
any possibility to apply to the Committee from India. He notes that the
other convicted hijackers have been granted temporary residence in
Switzerland, one was granted asylum in Germany in April 1997 and another one
who went to Canada was not held in detention and certified as a danger to
the public.
State Party's Observations on Admissibility
4.1 On 5 May 1997 the Committee, acting through its Special Rapporteur for
new communications, transmitted the communication to the State party for
comments and requested the State party not to expel or deport the author to
India while his communication was under consideration by the Committee.
4.2 In its response of 15 October 1997 the State party contested the
admissibility of the communication. It states that the author entered Canada
illegally. He misrepresented himself at the port of entry producing an
Afghan passport and claimed refugee status. In his refugee claim form,
completed with his counsel, as well as in an interview with an Immigration
Examining Officer on 3 February 1995 he maintained his false identity and
indicated having no criminal convictions. Nor did he indicate his membership
in any terrorist organization.
4.3 The author was arrested by immigration authorities on 13 September 1995,
when his true identity became known. On 25 October 1995 an immigration
officer, pursuant to section 27 of the Immigration Act prepared a report
alleging that the author was inadmissible in Canada as a person who there
are reasonable grounds to believe had been convicted outside Canada of an
offence that, if committed in Canada would be punishable by a maximum term
of imprisonment of 10 years or more. After a hearing, where his lawyer and
an interpreter were present, an adjudicator concluded that the report was
well founded and issued a conditional deportation order.
4.4 His detention, which has been reviewed on a regular basis, was
maintained pursuant to the Immigration Act, according to which a person can
be detained if he/she is likely to pose a danger to the public or if he/she
is not likely to appear when required by the immigration authorities.
4.5 On 21 June 1996 the Minister of Immigration signed the opinion that the
author was a "danger to the public". The parties agreed to review that
decision. Accordingly, he was invited to make any submissions which would
demonstrate that he was not a danger to the public, the element of risk of
return to India or that there were compelling humanitarian and compassionate
considerations which would warrant his remaining in Canada. His lawyer sent
an extensive package of material and asserted that the author is not a
danger to the public and that there are compelling reasons why he should be
allowed to remain in Canada.
4.6 On 16 April 1997 the Minister of Immigration issued an opinion, based on
the circumstances and severity of the crime for which the author was
convicted, that he constitutes a "danger to the public" in Canada. As a
result, the author is not eligible to have his refugee claim determined. The
decision was made with due consideration for the possible risk the author
might face if returned to India, a risk which was considered to be minimal.
4.7 The author, throughout his dealings with the Canadian authorities, has
never showed any contrition for his past action, nor any remorse for the
harm he has caused to the victims of his hijacking. He still refuses to
acknowledge that he used violence and considers that he was not the
aggressor.
4.8 The author filed several applications for leave to introduce a judicial
review against the decisions rendered in his case. Two substantive
applications remain pending. First, an application dated 30 April 1997 to
review the Minister's decision of 16 April 1997 in which the Minister
determined that the applicant is a danger to the public. Secondly, an
application dated 30 April 1997 to review the Immigration's decision to
remove the author to India, in which the author raised arguments under the
Canadian Charter of Rights and Freedoms. Joint to this application the
author asked the Court to order a stay of his removal pending the
consideration of the application. This stay was granted on 5 May 1997.
4.9 If the author were to succeed in his applications for leave to apply for
judicial review the decision of the Federal Court Trial Division could be
further appealed to the Federal Court of Appeal, if the judge of the Trial
Division were to certify that the case raises a serious question of general
importance. A decision of the Federal Court of Appeal can be appealed, with
leave, to the Supreme Court of Canada. The author has expressed no doubts
about the effectiveness and availability of those remedies. Accordingly,
this communication should be dismissed for failure to exhaust domestic
remedies.
4.10 The State party also argues that the communication should be declared
inadmissible because the author did not establish prima facie substantial
grounds to believe that his removal to India will have the foreseeable
consequence of exposing him to a real and personal risk of being subjected
to torture, as stated in previous jurisprudence of the Committee. A mere
possibility of torture is not in itself sufficient to give rise to a breach
of article 3. While Indian authorities advised the immigration officials of
the author's presence in Canada there is no indication that they are
particularly interested in his return or that they are presently looking for
him. The Indian authorities could have requested the author's extradition,
as an extradition treaty exists between Canada and India. Their decision not
to have recourse to that possibility indicates that the author is not of
particular interest for them. Furthermore, the document of the Indian
authorities - Central Bureau of Investigation, India Interpol New Delhi
-indicates that they are not looking for him.
4.11 The author's past membership to the AISSF cannot put him at risk today
since that organization, in recent years, denounced the use of violence and
committed itself to pursuing a peaceful political agenda. Considering that
members of the AISSF, including a convicted hijacker, are seeking election
in public office, it is unlikely that the author would be subjected to
persecution for his past membership in that organization.
4.12 The State party cites the United States Country Reports on Human Rights
Practices for 1995 and 1996. These reports indicate that India has many of
the safeguards to prevent against human rights abuses and recognizes that
although significant human rights abuses do take place their severity and
amount has diminished in recent years. Overall terrorist activity in the
Punjab is now much reduced as are the number of disappearances and fatal
encounters between Sikh militants and police/security forces.
4.13 According to the State party, the record before the Committee confirms
that the article 3 standard was duly and properly considered in Canadian
domestic procedures. The Committee should not substitute its own findings on
whether there were substantial grounds for believing that the communicant
would be in personal danger of being subjected to torture upon return, since
the national proceedings disclose no manifest error or unreasonableness and
were not tainted by abuse of process, bad faith, manifest bias or serious
irregularities. It is for the national courts of the States parties to the
Convention to evaluate the facts and evidence in a particular case. The
Committee should not become a "fourth instance" competent to re-evaluate
findings of fact or to review the application of domestic legislation,
particularly when the same issue is pending before a domestic Court.
Counsel's Comments
5.1 In his comments to the State party's submission counsel argues that the
author sought a hearing in the Federal Court to obtain a stay of the
deportation until the legality of the deportation order and its execution
could be challenged. At the same time the author was advised that his
removal would take place on 5 May 1997. The Federal Court only provided a
hearing date for the day he was to be removed. Under these circumstances and
given the fact that it would not be possible for the author to file any
appeals and to have the matter brought before a judge within the necessary
timeframes, the author sought interim measures from the Committee. At the
time the Committee assumed jurisdiction there was no assurance that an
effective remedy was available. Having assumed jurisdiction the Committee
ought to continue its review of the matter, despite the fact that the author
was granted stay.
5.2 The author sought judicial review of the finding that he was a danger to
the public but the Federal Court dismissed the application for leave on 19
January 1998. The refugee claim is barred from proceeding once the Minister
certifies that the author is a danger to the public. There is absolutely no
appeal from the decision of the Court denying leave. Thus, the author will
not be able to have his refugee claim determined and hence there is not nor
will there ever be a refugee determination for him. As a result, no risk
assessment will be made since this is only conducted in the context of the
refugee determination process.
5.3 At the same time the Federal Court - Trial Division, by decision dated
29 June 1998 quashed the decision of the immigration officer to execute the
removal order. However, the Court did not conclude that a risk assessment
had to be done. It stated that removal officers do not have jurisdiction to
conduct risk assessments and make risk determinations in the course of
making destination decisions. However, under section 48 of the Immigration
Act removal officers have a discretion to delay the execution of a
deportation order. In the Court's opinion the removal officer's failure to
consider whether or not to exercise his or her discretion under section 48
of the Immigration Act, pending the conducting of an appropriate risk
assessment and the making of an appropriate risk determination constituted a
reviewable error. An appeal against that decision was filed by the Minister
before the Federal Court of Appeal. No hearing date has been set yet. If the
Minister is not successful in the appeal the matter is merely referred back
to the expulsions officer for his determination as to whether or not the
author's removal should be deferred pending a risk assessment. However,
since the author has already been certified as a danger to the public there
is no statutory requirement for a risk assessment. Therefore, this remedy
cannot be considered as effective. It would then be open to the author to
make an application on humanitarian and compassionate grounds. Such an
application is a request for the exercise of special discretion before an
immigration officer who can nevertheless consider risk.
5.4 Although the author was held in detention for a period of over two years
he was ordered released by an immigration adjudicator in July 1998. Since
then he has complied with all conditions for his release, has not committed
any criminal offence and has not posed a danger to the public in any way.
5.5 With respect to the substantial grounds counsel argues that section
46.01 (e) (i) of the Immigration Act allows the Minister to certify a person
as a "danger to the public in Canada". However, it does not require that the
Minister assess risk. Although it is true that the author did make
submissions with respect to risk there is no indication in any of the
material that the author saw from the Minister that risk was in fact
assessed. The author has not seen any documentation which would support the
bare assertion by the Minister that there was a "minimal risk". If this is
in fact the case it is clearly a matter that was not relevant to the
certification process. In that context counsel submits that it is extremely
important that the Committee make a determination as to whether or not the
certification process engaged prior to the decision to execute the removal
order conforms with the requirements of international law, in ensuring that
persons not be sent back to situations where there are substantial risks of
torture.
5.6 The author has asserted that he always was remorseful for any harm that
was caused during the hijacking and denies that he himself used any violence
in the attack. He submits that he voluntarily surrendered and that none of
the passengers were subjected to any harm other than minor injuries from
which they quickly recovered.
5.7 Counsel insists that there is a substantial risk that the author would
be exposed to torture based upon the deplorable human rights record of the
Indian Government, his high profile as someone who is known to have been
involved in an organization which has been strongly supportive of an
independent Sikh State, the fact that he engaged in the hijacking as a means
of protest and the fact that other high profile persons like the author have
been detained and extrajudicially killed by the Indian authorities. The mere
fact that the Central Bureau of Investigation affirms that they are not
looking for him does not provide any assurance to the author that he would
be safe upon return. Many innocent persons have been arrested and killed
extrajudicially based upon suspicion of past connection to the militant
movement.
5.8 Finally, it is not possible for the Government of India to request the
extradition of the author, given that he was tried and convicted of the
offence in Pakistan and that under the Indian Constitution he cannot be
tried twice for the same offence.
Issues and Proceedings Before the Committee
6.1 Before considering any claim in a communication, the Committee against
Torture must decide whether or not it is admissible under article 22 of the
Convention.
6.2 Article 22, paragraph 5 (b), of the Convention precludes the Committee
from considering any communication, unless it has been ascertained that all
available domestic remedies have been exhausted. In the instant case the
Committee notes that the author was granted temporary stay and that the
Federal Court - Trial Division quashed the decision of the immigration
officer to execute the removal order. The Committee also notes that an
appeal filed by the Minister of Immigration against that decision is still
pending before the Federal Court of Appeal. If not successful the matter
would be referred back to the expulsions officer and the possibility of an
application on humanitarian and compassionate grounds would be open to the
author. There is nothing to indicate that the procedures still pending
cannot bring effective relief to the author. The Committee is therefore of
the opinion that the communication is at present inadmissible for failure to
exhaust domestic remedies. In the circumstances the Committee does not
consider it necessary to deal with other issues raised by the State party
and the author. That will be done, if required, at a later stage.
7. The Committee therefore decides:
(a) That the communication is inadmissible;
(b) That this decision may be reviewed under rule 109 of the Committee's
rules of procedure upon receipt of a request by or on behalf of the author
containing information to the effect that the reasons for inadmissibility no
longer apply;
(c) That this decision shall be communicated to the State party, the author
and his representative.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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