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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 7 November 2006,
Having concluded its consideration of complaint No. 282/2005, submitted to
the Committee against Torture on behalf of S. P. A. 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 under article 22, paragraph 7, of the
Convention against Torture.
1.1 The complainant is S. P. A., an Iranian national born in 1954 in
Tonkabon, Iran, currently residing in Canada, from where she faces
deportation. She claims that her return to Iran would constitute a violation
by Canada of articles 3 and 16 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment. She is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 27 September
2005, and requested it, under rule 108, paragraph 1 of the Committee's rules
of procedure, not to expel the complainant to Iran while her complaint is
under consideration by the Committee. The State party subsequently informed
the Committee that the complainant had not been deported.
The Facts as Presented by the Complainant
2.1 The complainant obtained a nursing degree in 1986 in Iran, and became a
supervisory nurse at the Rejai Hospital and a lecturer at the Islamic Azad
University of Mahal Salas Tonkabon. One of her responsibilities was the
purchase of nursing supplies, including bones and cadavers for teaching
purposes. Sometime in late 1999, she noticed the poor quality of bones
delivered: they showed signs of fractures and it was obvious to her that the
individuals had suffered trauma before their deaths. The complainant advised
M., the supplier, that she could not use the bones, upon which she wrote a
report to the Dean of the University. The next set of bones provided were in
perfect condition. Upon querying the origin of this later set of bones, the
complainant was informed by M. that the first set were taken from "anti
revolutionary groups" while the second were obtained by raiding an Armenian
cemetery. The complainant was distressed by this information and went to the
Magistrate for Islamic law to discuss the matter, which she believed was a
religious one. The Magistrate advised that he would look into the matter.
2.2 On subsequent occasions the complainant noted that the cadavers
delivered were of light skin, and on enquiry was told they had been taken
from a Baha'i cemetery. She complained again to the Magistrate, who told her
that he had ordered that bodies be taken from the Baha'i cemetery, as their
religion was below Islam. The complainant argued with him and was accused of
being an anti-revolutionary. That evening, the complainant was arrested
without charge in her home and taken to a basement room belonging to the
Ministry of Intelligence and Security, where she was interrogated while
blind folded. Despite her explanations, she was accused of insulting the
Islamic religion, was tortured and beaten. She was kept in a cell and
interrogated every night, still blindfolded. She was beaten with sticks and
wires, kicked, insulted and taunted. She was given electric shocks and
forced to stand for hours without sleep. The injuries on her head were
particularly severe and kept bleeding, and her toes were bruised and bloody.
2.3 After two months and because of her bleeding, she was put into a car one
night after midnight and taken for medical care. On the way, the driver
stopped, got out of the car and left it unlocked. The complainant got out of
the car and climbed into the back seat of the first car which was parked
near by. She managed to tell the driver her name and address and asked him
to take her home, before she lost consciousness. The driver of the car
recognized her, and took her to Rasht where her wounds were tended to. The
complainant fell in and out of consciousness. When she recovered she was
told that she was in Kermanshar and in a safe place. Those who took care of
her for several months advised her to leave Iran. They assisted her in
obtaining her passport from her family and through a smuggler she traveled
to Dubai and then to Colombia. She advised the smuggler that she did not
wish to stay in Colombia and therefore traveled to Turkey, Greece, Spain,
Jamaica, Mexico and then Canada. Upon her arrival in Canada on 10 September
2001 she made a claim for refugee status.
2.4 She was subsequently informed by relatives in Iran that the authorities
were looking for her and that they had been to her sister's house with
several summons for her arrest. They had threatened her daughter and asked
to speak to her husband. She was also informed that the driver who was
taking her from her detention place to obtain medical care had been bribed,
and was supposed to take her back to her family. As she had escaped, her
family had not known her whereabouts for a month and a half, at which time
the people in Kermanshar had contacted them. Finally, the complainant was
told that the people in Kermanshar had been paid by her family to care for
her and help her to leave Iran.
2.5 The complainant's application for refugee status on the basis of her
political opinion was rejected on 2 May 2003. On 23 May 2003, she filed an
application for leave and judicial review of this decision, which was denied
on 16 September 2003. On 25 March 2004 she filed an application for
consideration under section 25(1) of the Immigration and Refugee Protection
Act (humanitarian and compassionate grounds application, 'H&C'), providing
new evidence that she had been employed as the Supervisor of Nursing and an
Instructor at the University of Mahal Salas Tonekabon. She also submitted a
pre-removal risk assessment ('PRRA') application on 13 August 2004, and
subsequently submitted new evidence in the form of letters from her daughter
and sister, and a court summons dated 22 December 2003 from the Tehran
Islamic Revolutionary Court, requiring her to attend court on 6 January
2004. The H&C and PRRA applications were denied by the same officer and
notified to the complainant on 16 August 2005. An application for leave and
judicial review of the PRRA and H&C decisions was filed in the Federal Court
on 25 August 2004. Her application for stay of removal was denied on 26
September 2005.
2.6 The complainant was scheduled to be deported to Iran on 27 September
2005. The application for leave to apply for judicial review of both the
PRRA and H&C decisions was subsequently dismissed on 1 December 2005.
The Complaint
3.1 The complainant argues that she would be imprisoned, tortured or even
killed if returned to Iran, in violation of articles 3 and 16 of the
Convention. This is based on the fact she is a known perceived opponent of
the Iranian regime and the fact a passport was applied for on her behalf,
thereby alerting the Iranian authorities of her imminent return. There is a
court summons in her name, and as she missed the court date, based on
objective country information there will most likely be a warrant for her
arrest. Counsel refers to the United Kingdom Country Report from the
Immigration and Nationality Directorate Home Office from October 2003, which
states that the traditional court system in Iran is not independent and is
subject to government and religious interference. The report states that
trials in the Revolutionary Courts, where crimes against national security
and other principal offences are heard, are notorious for their disregard of
international standards of fairness. Revolutionary Court judges act as
prosecutor and judge in the same case, and judges are chosen for their
ideological commitment to the system. Indictments lack clarity and refer to
undefined offences such as 'anti-revolutionary behaviour'. Counsel claims
that those accused of 'anti-revolutionary behaviour' are dealt with unfairly
once detained: although the Constitution prohibits arbitrary arrest and
detention, there is reportedly no legal time limit on incommunicado
detention, nor any judicial means to determine the legality of the
detention. Further, female prisoners are repeatedly raped or otherwise
tortured while in detention, and there are widespread reports of extra
judicial killings, torture, harsh prison conditions, and disappearances.
3.2 Counsel submits a medical certificate dated 22 June 2005 based on the
complainant's Personal Information Form and a clinical interview and exam
performed on 17 June 2005, which concludes that there is evidence of
multiple scars on her body. Significant wounds are on her face and scalp,
and are consistent with a mechanism of blunt trauma as described by her. The
irregular depressed scar on the top of her head is said to be consistent
with her description of a lesion that was left open and sutured at a later
date. The scars on her arms and legs are more non-specific but are
consistent with blunt trauma. The bilateral toenail onycholysis is typical
for post traumatic nail injury and could certainly have resulted from being
stepped on repeatedly as she has described. The medical report concludes
that her psychological history is consistent with Post Traumatic Stress
Disorder-Chronic.
3.3 Counsel argues that the PRRA officer did not assess the risk as the
officer seemed to determine that the complainant was not credible, despite
this independent physician's report that her injuries were consistent with
the information provided in her Personal Information Form. Further, counsel
highlights that the PRRA officer did not determine that the warrant for the
complainant's arrest was not genuine.
State Party's Observations on the Admissibility and the Merits
4.1 On 27 June 2006, the State party argues, on article 3, that the
communication is inadmissible as manifestly unfounded as the complainant has
not substantiated her allegations even on a prima facie basis. Her
communication is based on the same story that competent domestic tribunals
have determined to lack credibility and plausibility. On article 16, the
complainant has made no attempt to substantiate her claim and it is
therefore also inadmissible as manifestly unfounded. Apart from the complete
absence of evidence on this point, according to the Committee's
jurisprudence, the potential aggravation of a complainant's state of health
possibly caused by deportation does not amount to the type of cruel, inhuman
or degrading treatment envisaged by article 16 [FN1].
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[FN1] The State party refers to Communication No. 183/2001, B.S.S. v.
Canada, Views adopted on 12 May 2004, paragraph 10.2.
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4.2 With regard to the scope of article 3, the State party recalls that it
refers to "substantial grounds" for believing that a person would be in
danger of being subjected to torture, and that the Committee's General
Comment on article 3 places the burden on the complainant to establish that
she would be in danger of being torture. The grounds on which a claim is
established must be substantial and must "go beyond mere theory or
suspicion", as confirmed by the Committee in numerous decisions.
Consideration of the relevant factors leads to the conclusion that there are
no substantial grounds for believing that the complainant would be in danger
of being subject to torture. In particular, her credibility is highly
suspect and her claim inconsistent and implausible. There are no credible
reasons to consider that she fits the personal profile of someone who would
be of interest to the Iranian authorities or particularly vulnerable if
returned to Iran.
4.3 With regard to the credibility and plausibility of the allegations and
the Committee's scope of review, the State party concedes that the Committee
does not expect complete accuracy from the complainant. What is required is
that the evidence may be considered "sufficiently substantiated and
reliable" [FN2] . Nevertheless, important inconsistencies in the present
case are "pertinent to the Committee's deliberations as to whether the
complainant would be in danger of being tortured upon return". [FN3] It is
not the role of the Committee to weigh evidence or re-assess findings of
fact by domestic courts, tribunals or decision-makers [FN4]. The
complainant's allegations and supporting evidence are identical to that
submitted to competent, impartial domestic tribunals and decision-makers and
that were found not to support a finding of risk in Iran. The analysis of
the evidence and the conclusions drawn by the Immigration Refugee Board as
well as by the PRRA officer who assessed the risk to which she may be
exposed if returned to Iran were appropriate and well-founded.
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[FN2] The State party refers to Communication No. 34/1995, Aemei v.
Switzerland, Views adopted on 9 May 1997, paragraph 9.6.
[FN3] Communication No. 148/1999, A.K. v. Australia, Views adopted on 5 May
2004, paragraph 6.2; and Communication No. 106/1998, N.P. v. Australia,
Views adopted on 6 May 1999, paragraph 6.6.
[FN4] The State party refers, inter alia, to Communication No. 148/1999, A.K.
v. Australia, Views adopted on 5 May 2004, paragraph 6.4.
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4.4 The State party recalls that the Committee cannot review credibility
findings "unless it is manifest that the evaluation was arbitrary or
amounted to a denial of justice". The complainant made no such allegations
and the material submitted does not support a finding that the Board's
decision suffered from such defects [FN5] . Nothing suggests that domestic
authorities had any doubts concerning their assessment, nor is there any
evidence that the domestic authorities' review was anything other than fully
satisfactory: the complainant is simply dissatisfied with the results of the
domestic proceedings and the prospects of deportation, but made no
allegations or produced any evidence that the proceedings were in any way
deficient. Accordingly there are no grounds on which the Committee could
consider that it is necessary for it to re-evaluate the findings of fact and
credibility made by the domestic tribunals. Nevertheless, should be
Committee be inclined to assess the credibility of the complainant, a focus
on some of the more important issues clearly supports a finding that the
complainant's story simply cannot be believed.
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[FN5] The State party refers, inter alia, to Communication No. 223/2002,
S.U.A. v. Sweden, Views adopted on 22 November 2004, paragraph 6.5.
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4.5 With regard to her role at the University, the complainant asserted in
her Personal Information Form that she was in charge of purchasing all
supplies necessary for the nursing faculty and that the University had an
arrangement for six years with the supplier of bones. However, in the oral
testimony, she stated that she was in charge of ordering bones and that
these began to be ordered in 1998, only one year before her problems began.
With regard to her arrest and torture, she stated in her Personal
Information Form that she recognised the voice of her first cousin, a member
of the Ministry, as one of her interrogators. However, in the oral
testimony, she stated that her first cousin was among those who arrested
her.
4.6 With regard to the complainant's account of her escape, the State party
shares the IRB's assessment that it was "unbelievable" and "exaggerated and
implausible". In any case, even if it were accepted that the man who was
driving her to the medical centre had been bribed by her family, it is
implausible that he would leave to allow her to get into another car which
coincidentally belonged to someone who recognised her, and that this
stranger would not take her to a hospital if she was bleeding and had
fainted. It is also not plausible that she would live in a house full of
strangers yet not know even after four months of living with them who they
were or what their names were, and would not ask to contact her family
during all that time.
4.7 With regard to her exit from Iran, the complainant's Personal
Information Form indicated that strangers helped her obtain her passport
from her family. However, in her oral testimony, she claimed that she left
Iran with a false passport. She claims that she needed an exit visa; it was
implausible that she would have received such a visa if she was escaping the
authorities. The State party shares the finding of the IRB that it is
"practically impossible to leave Iran through the Tehran airport if a person
is sought by the Iranian authorities. It is also almost impossible to obtain
false passports because of the many check-ups conducted before getting on
the plane". The complainant has not submitted any evidence that would be
capable of casting doubt on this finding.
4.8 With regard to the delay in seeking refugee protection, the complainant
traveled for two months through Colombia, Turkey, Greece, Spain, Jamaica and
Mexico, before coming to Canada and filing a refugee claim. The delay in
making a refugee claim detracts from her credibility. Under domestic and
international refugee law jurisprudence, a delay in filing a refugee claim
is a relevant factor to be taken into account in assessing whether the
complainant has a subjective and objective fear of persecution.
4.9 With regard to the existence of a summons, although the refugee claim
was made in September 2001, the complainant failed to present documentary
evidence to corroborate her claim before it was heard in November 2002.
Although she was in telephone contact with her family, she did not tell the
IRB if there was an arrest warrant out in her name, and it was not until her
claim was rejected that she submitted, as part of her PRRA application, a
"summons" dated 22 December 2003. It is implausible that a summons would be
issued more than two years after the complainant's alleged escape from
detention. If the authorities had been looking for her since her escape, it
is implausible that her family would have simply destroyed the other notices
of summons as their letters claim, nor even mentioned the existence of the
notices during their phone conversations with her. The State party thus
shares the PRRA officer's findings about the minimal probative weight of the
purported summons. In addition, there is no evidence or allegation that any
member of her family was detained or mistreated. With regard to the
existence of an arrest warrant, the State party emphasizes that there is no
such warrant despite the complainant's claims.
4.10 As far as the medical evidence is concerned, the complainant produced a
medical report dated 22 June 2005 in support of her PRRA application. The
PRRA Officer did not consider the report to be probative of future risk,
because the physician's opinion was based on his/her consideration of the
complainant's Personal Information Form and a clinical interview. The
existence of scars does not, by itself, establish that the complainant had
been a victim of torture in the past or would face a substantial risk of
torture in the future. In the light of the complainant's overall lack of
credibility and the implausibility of central aspects of her claim,
particularly since it is unsupported by other independent and reliable
evidence, the alleged cause of the scarring is implausible. Most
significantly, the scarring, while perhaps evidence of past torture is
insufficient to substantiate that the complainant would be at risk of
torture in the future.
4.11 Finally, although the State party concedes that the general human
rights situation in Iran is poor and deteriorating, it notes that because
the country to which the complainant would be returned is Iran does not by
itself constitute sufficient grounds for determining that she would be in
danger of being subjected to torture upon her return [FN6] .
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[FN6] The State party refers, inter alia, to Communication No. 256/2004, M.Z.
v. Sweden, Views adopted on 12 May 2006, paragraph 9.6.
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Complainant's Comments on the State Party's Observations on Admissibility
and Merits
5.1 On 6 September 2006, the complainant argues that the jurisdiction of the
Committee does include an independent review of the facts. [FN7] Its role
would be redundant if it were merely to follow the decisions of domestic
tribunals without any independent assessment of the case [FN8] . Further,
the IRB, the only comprehensive evaluation of her case, failed to recognize
the effects of torture or trauma on a person's ability to recount her story.
With regard to her credibility, the complainant argues that the evidence of
four independent medical and psychological experts as well as letters from
the Vancouver Association for Survivors of Torture about her psychological
state and the scars on her body corroborate her account of being tortured.
She recalls that torture affects one's ability to recount traumatic
experiences in a coherent and consistent manner, and that complete accuracy
is seldom to be expected from victims of torture, especially those suffering
Post Traumatic Stress Disorder.
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[FN7] Counsel refers to Communication No. 258/2004, Dadar v. Canada, Views
adopted on 23 November 2005, paragraph 8.8.
[FN8] Ibid.
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5.2 With regard to the State party's argument that the complainant's case
has been reviewed by "competent, domestic tribunals", and firstly as to the
Immigration and Refugee Board ('IRB'), the complainant notes that there is
no reference whatsoever to training of IRB members on the effects of trauma
or torture. There is also no reference to training on how IRB members
understand or use medical and psychological reports as a tool in the
assessment of credibility. The complainant recalls that at no time during
the hearing did the IRB member appear to recognize that she displayed
classic symptoms of trauma. The IRB member who heard her refugee application
on 28 November 2002 had limited, if any, expertise in the effects of trauma
or torture. Consequently, the member was distracted by minor inconsistencies
in the testimony and failed to give due weight to the expert report of a
psychologist, which was filed with the IRB on 10 September 2003. Since the
IRB member found the complainant not credible, the psychological assessment
was ignored. In other words, the Member assessed the complainant's
credibility without considering the effects of depression and PTSD, then
dismissed the psychological report as irrelevant.
5.3 While the State party argues that the complainant benefited from several
reviews by independent, competent tribunals after the refugee hearing, she
submits that this is a misleading description of the process for failed
refugee claimants. Indeed, judicial review is an extremely narrow remedy,
available only on technical legal grounds, and applicants must obtain leave
from the Court before they can proceed to judicial review. From 1998 to
2004, the Federal Court denied leave in 89% of cases. Of the 11% who were
granted leave, only 1.6% of negative decisions by the IRB were overturned by
the Federal Court.
5.4 With regard to the PRRA, the complainant recalls that its scope is
limited to "new evidence", not arguments that the initial decision by the
IRB was wrong, and that in 2003 only 2.6% of PRRA applications were
approved. She also recalls that she submitted new evidence which her family
had sent her and that had not been available at the time of the IRB hearing.
She filed a medical report confirming the scars on her body, evidence that
she worked at Azad University, and a writ of summons issued by the Tehran
Islamic Revolutionary Court. The PRRA officer rejected her application in
July 2005 on the basis of lack of corroborating evidence. She emphasized
that her jurisdiction was limited to review of "new evidence" and refused to
consider the newly available documents relating to the complainant's
employment at the University because, in her opinion, the documents should
have been obtained before the refugee hearing and therefore could not be
considered as new evidence. In fact, the documents were found in storage at
the complainant's mother's home.
5.5 While the PRRA officer did not contest that there was significant,
unusual scarring on the complainant's head, scalp and body, she dismissed
the medical report because the doctor's opinion was based on a "clinical
interview" with the complainant and a review of her Personal Information
Form. These comments reflect a complete lack of training or understanding
about the nature of medical evidence. Thus, the complainant argues that
crucial medical and psychological evidence have never been properly
considered at any stage of the refugee process. The dismissal by the PRRA
officer of the medical evidence was arbitrary, unreasonable and completely
incorrect. As to the writ of summons, the PRRA officer accorded it "minimal
weight", drawing on research concerning criminal proceedings in Iran. This
is an inappropriate comparison as the writ indicates that it was issued by
the Islamic Revolutionary Court, which presides over religious matters.
5.6 With regard to the H&C decision, the complainant recalls that the
Committee has noted its limitations [FN9] and that in the present case the
H&C review and the PRRA were performed by the same officer. In her decision
on the H&C, the officer referred to her findings in the PRRA and many of the
paragraphs in the PRRA are copied verbatim in the H&C. It is submitted that
the H&C was not an independent review and suffered from the same flaws as
the PRRA.
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[FN9] Counsel refers to Communication No. 133/1999, Enrique Falcon R�os v.
Canada, Views adopted on 23 November 2004.
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5.7 With regard to inconsistencies in her testimony, the complainant submits
that none of them go to the heart of her account and that her overall
account has always been consistent. She recalls that the Committee has
frequently acknowledged that complete accuracy is seldom to be expected by
victims of torture. [FN10] It has also held that a medical diagnosis of Post
Traumatic Stress Disorder is a relevant factor in considering whether
inconsistencies detract from a claimant's credibility. [FN11] Finally, as to
the delay in seeking protection, the Convention for the protection of
refugees does not require that a refugee seek protection in the first state
to which he flees.
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[FN10] Counsel refers to Communications No. 21/1995, Ismail Alan v.
Switzerland, Views adopted on 8 May 1996; and No. 41/1996, Pauline Muzonzo
Paku Kisoki v. Sweden, Views adopted on 8 May 1996.
[FN11] Counsel refers to Communication No. 43/1996, Kaveh Yaragh Tala v.
Sweden, Views adopted on 15 November 1996.
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5.8 With regard to the human rights situation in Iran, the complainant
recalls that the Committee has previously taken note of the serious human
rights situation in Iran in finding that an applicant should not be refouled
to that country. [FN12] She submits that the situation in Iran has not
improved, and recalls that the General Assembly has recently expressed
serious concern at the continuing human rights violations taking place there
[FN13] . The Committee has persuasive evidence corroborating that the
complainant was tortured by the Iranian authorities, and in Iran a history
of detention and torture is a significant indicator of future risk [FN14] .
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[FN12] Ibid, para.10.4.
[FN13] Counsel refers to Resolution 60/171, adopted in March 2006.
[FN14] Referring to Tala where the Committee held that "his history of
detention and torture should be taken into account when determining whether
he would be in danger of being subjected to torture upon his return".
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Issues and Proceedings Before the Committee
Examination of Admissibility
6.1 Before considering any claims contained in a communication, the
Committee 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 so 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 The Committee notes that the State party has raised an objection to
admissibility based on the fact that the complainant, in its view, has not
substantiated her allegations even on a prima facie basis and that therefore
the communication is manifestly unfounded. As to the complainant's claims
under article 16 of the Convention, the Committee notes that no arguments or
evidence have been submitted in substantiation of this claim, and therefore
the Committee concludes that this claim has not been substantiated for the
purposes of admissibility. This part of the communication is thus
inadmissible.
6.3 As to the allegations made pursuant to article 3 of the Convention, the
Committee is of the opinion that the arguments before it raise substantive
issues which should be dealt with on the merits and not on admissibility
alone. The Committee therefore declares the communication admissible as to
the allegations made under article 3 of the Convention.
Merits of the Communication
7.1 The issue before the Committee is whether the forced return of the
complainant to Iran would violate the State party's obligation pursuant to
article 3, paragraph 1, of the Convention not to expel or return ('refouler')
an individual to another state where there are substantial grounds for
believing that he or she would be in danger of being subjected to torture
upon return to Iran. In reaching this decision, the Committee must take into
account all relevant considerations, pursuant to article 3, paragraph 2, of
the Convention including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. The aim of the determination,
however, is to establish whether the 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 a sufficient ground for determining that a particular
person would be in danger of being subjected to torture upon his return to
that country; additional grounds must exist to show that the individual
concerned would be personally at risk. Similarly, the absence of a
consistent pattern of gross violations of human rights does not mean that a
person cannot be considered to be in danger of being subjected to torture in
his or her specific circumstances.
7.2 The Committee recalls its General Comment No. 1 on article 3 [FN15] ,
which states that it is to assess whether there are "substantial grounds for
believing that the author would be in danger of torture" if returned, and
that the risk of torture "must be assessed on grounds that go beyond mere
theory or suspicion". The risk need not be "highly probable", but it must be
"personal and present". In this regard, in previous decisions the Committee
has determined that the risk of torture must be "foreseeable, real and
personal" [FN16].
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[FN15] A/53/44, Annex XI, adopted on 21 November 1997.
[FN16] Communication No. 203/2002, A.R. v. The Netherlands, Views adopted on
21 November 2003, paragraph 7.3.
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7.3 In assessing the risk of torture in the present case, the Committee
notes that the complainant has claimed that she was arrested and detained
for around two months in early 2001 by Iranian authorities, and that during
this period she was tortured. It also notes the complainant's contention
that there is a foreseeable risk that she would be tortured if returned to
Iran, on the basis of her previous detention and torture, the fact the State
party applied for a passport for her, and the court summons which, according
to the complainant, will result in an arrest warrant as she did not appear
before the court as required.
7.4 The Committee also notes the complainant's argument that the PRRA, H&C
and subsequent judicial review procedures are flawed, as the officer who
concluded both procedures deemed that the court summons and proof of the
complainant's employment as a nurse were not "new evidence" which she had to
take into account during the PRRA. On this point the Committee considers
that the judicial review procedure, while limited to appeal on points of
law, did examine whether there were any irregularities in the PRRA and/or
H&C determinations.
7.5 The State party has pointed to inconsistencies and contradictions in the
complainant's testimonies which, in its opinion, cast doubt on the veracity
of her allegations. The State party has specifically highlighted
inconsistencies relating to the complainant's story on her role at the
University, her arrest, torture, and escape from detention, her exit from
Iran and delay in seeking refugee protection, and finally the summons for
court and the lack of evidence of an arrest warrant. The Committee draws the
attention of the parties to its General Comment No. 1 according to which the
burden to present an arguable case is on the author of a complaint. Here,
the Committee notes that the complainant has provided a court summons and
documents purporting to refer to her employment at the University. However
the Committee deems that the complainant has not submitted sufficient
details or corroborating evidence to shift the burden of proof. In
particular, she has not adduced satisfactory evidence or details relating to
her detention or escape from detention. Further, she has failed to provide
plausible explanations for her failure or inability to provide certain
details which would have been of relevance to buttress her case, such as her
stay for over three months in Kermanshah and the names of those who helped
her to escape. Finally, the Committee deems that she has failed to provide
plausible explanations for her subsequent journey through seven countries,
including some asylum countries, prior to finally claiming refugee status in
Canada.
7.6 The Committee notes that the complainant's arguments, and the evidence
to support them, have been presented to the State party's courts. The
Committee reiterates in this regard that it is for the courts of the State
parties to the Convention, and not the Committee, to evaluate facts and
evidence in a particular case. It is for the appellate courts of States
parties to the Convention to examine the conduct of a case, unless it can be
ascertained that the manner in which the evidence was evaluated was clearly
arbitrary or amounted to a denial of justice, or that the officers had
clearly violated their obligations of impartiality. In this case, the
material before the Committee does not show that the State party's review of
the complainant's case suffered from such defects.
7.7 Finally, the Committee, whilst noting with concern the numerous reports
of human rights violations, including the use of torture, in Iran, must
reiterate that for the purposes of article 3 of the Convention, the
individual concerned must face a foreseeable, real and personal risk of
being tortured. On the basis of the above, the Committee considers that the
complainant has not substantiated that she would personally face such a real
and imminent risk of being subjected to torture upon her return to Iran.
7.8 The Committee Against Torture, acting under article 22, paragraph 7, of
the Convention, considers that the complainant has not substantiated her
claim that she would be subjected to torture upon return to Iran and
therefore concludes that the complainant's removal to that country would not
constitute a breach of article 3 of the Convention.
[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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