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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 16 November 2007,
Having concluded its consideration of complaint No. 297/2006, submitted on
behalf of Bachan Singh Sogi 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 and the State party,
Adopts the following:
Decision of the Committee against Torture under article 22 of the Convention
1.1 The complainant, Bachan Singh Sogi, an Indian national born in 1961, was
resident in Canada at the time of submission of the present complaint and
subject to an order for his removal to India. He claims to be a victim of a
violation of article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. He is represented by counsel,
Ms. Johanne Doyon.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the State party's attention by note
verbale dated 14 June 2006. At the same time, the Committee, pursuant to
rule 108, paragraph 1, of its rules of procedure, requested the State party
not to deport the complainant to India while his complaint was being
considered.
1.3 On 28 June 2006 the Committee was informed by the complainant and the
State party that the complainant would be removed despite the Committee's
request for a suspension of removal.
1.4 By note verbale of 30 June 2006 the Committee repeated its request to
the State party to suspend removal of the complainant.
1.5 The Committee was informed by counsel that the complainant had been
expelled on 2 July 2006 and that the Canadian Border Services Agency (CBSA)
refused to reveal the destination. The State party confirmed that the
complainant had been returned to India and justified the decision by the
fact that he had failed to establish that there was a substantial risk of
torture in his country of origin.
1.6 On 5 July 2006 counsel informed the Committee that the complainant was
in a local prison in Gurdaspur, in Punjab, India, and that, according to
police information, he had been beaten and subjected to ill-treatment by the
local authorities. She also said that Amnesty International had agreed to
monitor the complainant's case.
The Facts as Presented by the Complainant
2.1 The complainant states that he and his family were falsely accused of
being Sikh militants and on the basis of that allegation were arrested and
tortured several times in India. The complainant was therefore compelled to
leave the country.
2.2 According to the pre-removal risk assessment (PRRA) of 26 June 2003, the
complainant had told the Canadian authorities that he was a farmer in Punjab
in India, and that his home was not far from the border with Pakistan, which
meant that he and his family had on several occasions been forced to harbour
Sikh militants. In May 1991, February 1993, August 1997, December 1997 and
January 2001, the complainant was arrested by the police on suspicion of
belonging to the Sikh militant movement. He states that whenever an attack
took place that was attributable to the terrorist militants in the region,
the police turned up at his home and searched the house. His brother and his
uncle had also been accused of being terrorists and his uncle had been
killed by the police in 1993; his father, too, had been killed in an
exchange of fire between terrorist militants and police in 1995.
2.3 The complainant was in the United Kingdom from July 1995 to February
1997 and applied for refugee status there. His application was turned down
in September 1996. He decided to return to India, as the Akali Dal party had
just been elected to govern the province in February 1997 and had promised
to stop police violence and abuse in Punjab State; on his return he
reportedly joined Akali Dal. He says that he continued to be harassed by the
police. His brother had earlier left India for Canada and been granted
refugee status there. This prompted the complainant to flee the country too,
in May 2001.
2.4 On 8 May 2001 the complainant arrived in Toronto and claimed refugee
status. In August 2002 the Canadian Security and Intelligence Service (CSIS)
issued a report stating that there were reasonable grounds to believe that
the complainant was a member of the Babbar Khalsa International (BKI)
terrorist group, an alleged Sikh terrorist organization whose objective is
to establish an independent Sikh state called Khalistan, taking in the
Indian province of Punjab. Based on this report a warrant was issued for his
arrest as he was deemed a threat to Canada's national security.
2.5 On 8 October 2002 a hearing was held to consider the report showing the
complainant to be a member of a terrorist organization and an order was
issued for his removal by the Immigration and Refugee Board.
2.6 The complainant applied for judicial review of the 8 October 2002
removal decision. On 8 December 2003 the Federal Court concluded that the
hearing officer had not erred in determining that certain information was
relevant but could not be disclosed for reasons of national security, and
confirmed that that information should not be disclosed, but could
nevertheless be taken into account by the Court. This ruling was upheld on
appeal in a Federal Court of Appeal judgement dated 28 May 2004.
2.7 In parallel with this the complainant applied for a pre-removal risk
assessment (PRRA). According to the PRRA decision of 26 June 2003, although
the complainant had denied any involvement with any militant movement in
Punjab, the CSIS report had found that there were substantial grounds for
believing that he was a member of BKI and he was suspected under several
aliases of having planned attacks on a number of Indian political figures.
Given the profile established of the complainant, namely, a suspected member
of BKI, the fact that BKI was listed as an international terrorist
organization in several countries, and the treatment meted out by the police
to suspected terrorists, the decision stated that “the complainant ran a
real risk of torture and cruel and unusual punishment and treatment if
returned to India”.
2.8 In a decision of 2 December 2003, the Minister's delegate rejected the
complainant's application for protection. While recognizing that there was a
risk of torture in the event of deportation, she decided, after having
weighed the interests at stake, that Canada's overall security interests
should prevail in this case. She found that there was sufficient evidence of
the complainant's membership of BKI and of his intention under various
aliases to assassinate Indian public figures, including the Chief Minister
of Punjab and the former Chief of Police of Punjab.
2.9 The complainant applied for judicial review of the 2 December 2003
decision of the Minister's delegate. On 11 June 2004, the Federal Court in
Toronto noted that, according to Supreme Court case law, in particular the
Suresh judgement cited by the complainant, [FN1] the prohibition of torture
was “an emerging peremptory norm of international law” and international law
rejected deportation to torture even where national security interests were
at stake. The Court nevertheless considered that exceptional circumstances
in the present case [FN2] led to the conclusion that the complainant was a
“skilled BKI assassin who will lie to protect himself”, for the exceptional
circumstances were very different from those prevailing in the Suresh case.
The Court found that, in the deportation decision, the Minister's delegate
had erred in two respects. Firstly, the decision did not address any
alternatives to deportation to torture: any such decision must consider, in
the balancing exercise, any alternatives proposed to reduce the threat.
Secondly, the decision failed to adequately describe and explain the threat
posed to national security. Consequently the Court referred the deportation
decision back for the Minister's delegate to prepare a revised version of
the decision which would consider the alternatives to deportation suggested
by the applicant and specifically define and explain the threat.
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[FN1] Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3, 2002 SCC 1.
[FN2] According to the Federal Court ruling cited here, the evidence before
the Minister's delegate showed the following exceptional circumstances:
• The applicant, on behalf of BKI, used an alias to facilitate his plan to
assassinate the Chief Minister of Punjab, his son and the former Chief of
Police of Punjab;
• A Times of India article dated 9 June 2001 described the assassination
plot and said that, had it succeeded, it would have destabilized the Indian
Government;
• Information corroborated by reliable sources verified that the applicant
is the same person as the Gurnam Singh mentioned in the article;
• BKI is implicated in the bombing of Air India flight 182;
• The secret evidence showed that the applicant has used six aliases
including the name Gurnam Singh;
• The applicant is skilled in the use of sophisticated weapons and
explosives;
• The letters suggest that, contrary to the applicant's statement in his
PRRA application (that he had never claimed refugee status elsewhere), the
applicant is a failed refugee claimant in the United Kingdom.
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2.10 On 6 June 2005 the Court of Appeal upheld the appeal and referred the
case back for a fresh PRRA. A second PRRA decision was issued on 31 August
2005, again finding that the complainant was at risk of torture in India
since he was suspected of being a senior member of BKI.
2.11 On 11 May 2006 another decision on protection was handed down by the
Minister's delegate, this time finding that, while the complainant might be
prosecuted in India for his alleged part in assassination attempts, new
legislation had entered into force protecting accused persons from abuses
that had been tolerated under the old law. [FN3] On that basis she had
determined that the complainant would run no risk of torture if he was
returned to India. She also determined that the complainant posed a threat
to national security. The request for protection was therefore denied.
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[FN3] The Minister's delegate stated that the Prevention of Terrorism Act
2001 had been replaced by the LOTA of 2002. The new law apparently
established certain safeguards for the accused, such as a prohibition on
forced confessions and a guarantee of the accused's right to have complaints
of torture considered.
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The Complaint
3.1 The complainant alleges a violation of article 3 of the Convention. He
argues that the 2 December 2003 decision denying him protection was taken on
the basis of irrelevant criteria such as the nature and gravity of past
actions and the threat he posed to Canada's security, and that it violates
the Convention, which allows for no exceptions with respect to return to a
country where there are substantial grounds for believing that the person
would be in danger of being subjected to torture. He recalls that, where it
is shown that the person would be in danger of torture, it is against the
principles proclaimed by the Convention to use irrelevant considerations to
justify the denial of protection. [FN4] He argues that, in the 11 May 2006
decision on protection, the Minister's delegate again applied irrelevant
considerations to justify the denial of protection to the applicant, in
violation of the Convention and of international law. He also claims that
the evidence in the case file shows beyond a doubt that there was a risk of
torture if he was returned to India, as established in the three decisions
preceding the 11 May 2006 denial of protection.
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[FN4] The complainant cites the European Court of Human Rights judgement in
Chahal v. United Kingdom [1996] 23 ECHR 413.
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3.2 The complainant claims that the Minister's delegate had put him in even
greater danger in her 11 May 2006 decision by attributing to him crimes he
had not personally committed. Furthermore, there were several errors in the
decision, for the Minister's delegate had failed to take account of the
documents showing that torture was practised in India. According to these
documents, torture was commonly used as an interrogation technique and the
police were trained in its use, employing sophisticated methods that did not
leave visible traces. The complainant argues that, rather than assessing the
risk of the police using torture, the Minister's delegate merely asserted
that the worst problems in Punjab were rural employment and the lack of food
industries. He also points out that the delegate's claim that conditions in
Punjab had improved overall in no way proved that a person believed to be a
high-profile member of BKI would not be tortured. The delegate had also
failed to address his specific situation. She ultimately had rejected out of
hand the objective evidence such as Amnesty International's January 2003
report showing that, notwithstanding the legislative reform intended to
stamp out torture, Punjab's judicial system remained most unsatisfactory.
Lastly, the complainant states that the background documentation submitted
clearly shows that torture is practised by the Indian authorities,
particularly against militants or suspected terrorists. He claims that he
would still be at risk of torture if he was returned to India.
State Party's Observations on Admissibility and the Merits
4.1 The State party transmitted its observations on admissibility and the
merits by note verbale dated 12 January 2007. The State party notes that,
even though two requests for judicial review are still pending before the
Federal Court, it will not at this stage challenge the admissibility of the
communication for non-exhaustion of domestic remedies, though it reserves
the right to do so once the proceedings in the Canadian courts are
concluded.
4.2 The State party maintains that the complaint should be rejected on the
merits because the complainant has failed to establish that he personally
would run a real and foreseeable risk of torture in India. The State party
notes that the human rights situation in Punjab has improved considerably
since the end of the Sikh insurrection.
4.3 The State party further argues that the delegate of the Minister of
Citizenship and Immigration has given careful consideration to the
complainant's claims and determined that he was not in danger of being
subjected to torture in India. The Committee should not substitute its own
findings for those of the Minister's delegate except in case of manifest
error, abuse of process, bad faith, bias or serious procedural
irregularities. In the State party's view the complainant's claims to the
Committee call into question the delegate's decision to reject his request
for protection, and indirectly invite the Committee to conduct a judicial
review of the decision. The State party recalls that the Committee's role is
to establish a violation of article 3 of the Convention, not to carry out a
judicial review of the delegate's decision.
Further Observations by the State Party
5. On 28 February 2007 the State party informed the Committee that the
complainant's two requests for judicial review, one in respect of the
decision of the Minister's delegate rejecting his application for protection
and the other in respect of the decision to enforce the removal order, had
been rejected by the Federal Court of Canada on 1 February 2007. The Court
had found that the applications were now moot and that there were no grounds
for it to exercise its discretion to consider the cases on the merits. The
Court's judgement may be appealed in the Federal Appeal Court if the judge
certifies that the matter raises a serious question of general importance.
Since neither the complainant nor the Canadian Government requested
certification of such a question within the time set by the Court, and since
the Court itself has not certified that there is such a question, the
Federal Court ruling has become enforceable.
Counsel's Comments on the State Party's Observations
6.1 On 6 April 2007 counsel contested the State party's observations and
communicated to the Committee certain new facts that had arisen since the
complaint was submitted to the Committee.
New Facts Arising Since Submission of the Complaint to the Committee
6.2 Counsel states that an application for judicial review of the decision
to enforce the removal of the complainant had been made on 11 June 2006.
Another application, for judicial review of the 11 May decision on
protection, was still pending before the Federal Court at the time. Counsel
states that she was notified on 12 June 2006 that the complainant's removal
had been set for 16 June 2006. She claims that, despite several requests for
the exact time and destination of removal, she was given no information.
6.3 A provisional application for a stay was then made to the Federal Court,
together with a request for an emergency hearing by telephone conference.
The Canadian Government agreed to a temporary stay of removal pending a
Federal Court hearing on the application for a stay, to be held on or around
16 June 2006. On 23 June 2006 the Federal Court rejected the application for
a stay and the removal order then became enforceable.
6.4 On 30 June 2006 counsel filed a notice of appeal against the decision on
the application for a stay with the Federal Court of Appeal, which rejected
it the same day.
6.5 The Canadian Government deported the complainant to India on 2 July
2006, despite the Committee's request for interim measures. Counsel repeats
that she was not informed of the destination, but notes that after the
deportation she was told, on or about 5 July 2006, that the complainant had
been arrested by the local police on arrival at the airport and taken to the
Gurdaspur police station, where he remained in detention until 10 July 2006
on a number of serious criminal charges. She also says she was told that the
complainant had been beaten and ill-treated by the Indian authorities while
in detention at the Gurdaspur police station. Counsel states that the
complainant was then taken from the police detention centre to the Chief
Judicial Magistrate.
6.6 After the complainant had been deported, the two applications for leave
and judicial review of the 11 May 2006 protection decision and of the
removal order were granted. On 29 August 2006 the judge found that the case
raised serious questions and the applications were accordingly heard in the
Federal Court on 22 January 2007.
6.7 On 1 February 2007 the applications for leave and judicial review were
rejected by the Federal Court, which found that they had become moot by
virtue of the enforcement of the removal order against the complainant. His
removal despite the fact that those requests were still before the Court
deprived the complainant of the remedies available to him in Canada and he
has therefore exhausted all domestic remedies.
6.8 Counsel contacted the complainant in India on 13 March 2007. He told her
that he was charged with having supplied explosives to a person who had been
convicted under Canadian arms and explosives legislation. He also told her
he had been beaten by the police while in prison and threatened with further
beatings if he reported that ill-treatment.
Comments on the Merits
6.9 Counsel notes that, by sending the complainant back to India, the State
party violated his rights under the procedure for determining the risks of
torture and article 3 of the Convention. She recalls that the Canadian
authorities denied that the complainant ran any risk of torture in order to
be able to send him back legally. The Canadian Government erred in its
assessment of the risk of torture in the event of return, in part by having
recourse to secret evidence that the complainant did not have access to and
could not challenge.
6.10 Counsel further claims that the Canadian Government was a party in the
decision on protection for the complainant, thereby violating his right to
be judged by an independent, impartial decision maker. She notes that it is
clear from an e-mail sent to CBSA on 10 May 2006 by an official of the
Government's Security and War Crimes Unit that CBSA was already aware that
the protection decision would be negative and that the removal procedure had
been set in motion, even though the decision had not yet appeared in the
immigration computer files (FOSS). Yet the complainant was only notified of
the negative decision on his case on 15 May 2006. The enforcement of the
complainant's removal had thus already begun, despite the fact that he
himself had not yet been informed of the decision and at this stage still
had several remedies available to him against the decision. In counsel's
view, the Minister's delegate responsible for taking the decision on
protection failed to act in an independent and impartial manner.
6.11 Counsel argues that the 23 June 2006 decision rejecting the application
for a stay was unlawful and incorrect in fact and in law since the evidence
showed that there was a probable risk of torture were the complainant to be
returned, in violation of article 3 of the Convention. Counsel argues that
the application for a stay had to be presented in provisional fashion
because she had been given only very short notice of the date of removal,
leaving little time to prepare an application in such a complex case.
However, the presiding judge at the hearing had refused to hold an interim
hearing on the application and instructed the counsels to present their
arguments on the merits. This procedure, she says, violated the
complainant's right to proper representation. The judge at first instance
had erred in the decision on the stay insofar as he had ignored the evidence
of the three PRRAs pointing to probable risk of torture or persecution in
the event of return to India.
6.12 Counsel notes that the complainant had been arrested and held for
nearly four years on the basis of secret evidence and was never allowed to
know the charges or evidence against him. In its recent Charkaoui decision,
[FN5] the Supreme Court of Canada had found that the holding of in camera
proceedings to consider evidence withheld from the applicant and with no
public hearing on the admissibility of that evidence violated the rights to
life, liberty and security of person under section 7 of the Canadian Charter
of Rights and Freedoms.
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[FN5] Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9.
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6.13 During his four years in detention, the complainant was under constant
threat of removal to a country where he risked torture, a situation that was
in itself a form of torture and a violation of article 3 of the Convention.
[FN6] As certified in the psychologist's report submitted in 2003, he
suffered from serious psychological distress and showed symptoms of insomnia
and stress, which made for additional risk in the event of return.
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[FN6] Counsel cites a report by Physicians for Human Rights entitled «Break
them down - Systematic use of psychological torture by US forces (20 May
2005), which defines the use of threats to return someone to a country where
torture is practised as a form of torture in itself.
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6.14 Counsel recalls the absolute prohibition in international law on return
of a person at risk of Torture [FN7] and claims that the return of the
complainant is a deliberate and direct violation of the State party's
international obligations and of article 3 of the Convention.
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[FN7] In this context counsel cites the European Court of Human Rights
decision in Aksoy v. Turkey (100/1995/606/694).
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6.15 In counsel's view, therefore, the return of the complainant
notwithstanding the decisions establishing a risk of torture and
persecution, the absence of any new circumstances, the Committee's request
for interim measures, the complainant's state of health and the evidence
that there is a current risk of torture is unconstitutional and a direct
violation of article 3 of the Convention. This conclusion is borne out by
the fact that the complainant was arrested on arrival in India, had serious
charges brought against him and was beaten and threatened by the Indian
authorities.
Further Comments by the Parties
7.1 On 26 July 2007 the State party asserted that the only relevant point
the Committee had to determine was whether, at the time of the complainant's
return, there were substantial reasons to believe that he would personally
be at risk of torture in India. Counsel's contentions in respect of various
stages of the pre-removal procedure are incompatible ratione materiae with
article 3 of the Convention. The State party recalls that article 3 does not
recognize the right to be heard by an independent and impartial tribunal,
the right to be properly represented by counsel or the right to know the
evidence against one. The claims that the decisions rejecting the
complainant's applications for protection and a stay of removal were
arbitrary and unlawful cannot point to a violation of article 3. The State
party considers that counsel is effectively asking the Committee to hear an
appeal against the Canadian courts' decisions.
7.2 As to the claim that the State party had «been a party to the decision
of the Minister's delegate, the State party argues that it too is
inadmissible, on grounds of non-exhaustion of domestic remedies, insofar as
the complainant raised it for the first time before the Committee, whereas
he should have raised it first with the Federal Court of Canada.
7.3 The State party argues that counsel's claims in respect of the
pre-removal procedure are inadmissible because they do not demonstrate the
minimum justification needed to meet the requirements of article 22 of the
Convention. In the alternative, the claims in respect of the pre-removal
procedure do not constitute a violation of article 3 of the Convention. The
State party points out that the complainant's claims with regard to the
Federal Court's refusal to grant the parties an interim hearing and his
right to be heard by an independent and impartial court were in fact raised
in the Federal Court, which found that the time limit for submitting an
application for a stay was normal and noted that the complainant had known
since 15 May 2006 that his request for protection had been denied and the
removal procedure was to be set in motion. The State party argues that the
complainant could have prepared his application for a stay well before 12
June 2006. As to the second claim, the presiding judge at the stay hearing
noted that the mere fact that the same case had come before him in earlier
proceedings did not in itself give rise to a reasonable apprehension of
bias. The State party is therefore of the view that the complainant's claims
have been considered by the national courts in accordance with the law and
have been rejected.
7.4 As to the claim that the decision rejecting the application for a stay
was unlawful and incorrect, the State party argues that the Federal Court
examined all the documentary evidence, including the fresh evidence
submitted by the complainant, and declared itself not convinced that the
complainant would be in danger of being subjected to torture in the event of
return.
7.5 As to the claim that the State party was involved in the 11 May 2006
decision by the Minister's delegate rejecting the complainant's request for
protection, the State party notes that this allegation is based on an e-mail
to a CBSA staff member. It states that CBSA had had no say in the delegate's
decision and the delegate had acted quite impartially. The State party
further points out that there had not been three “preceding decisions” in
the complainant's favour but one decision, dated 2 December 2003, which had
been annulled, and two torture risk assessments carried out by PRRA
officials (dated 26 June 2003 and 31 August 2005). The State party notes
that, while delegates should take such assessments into account, they are
not bound by them and it is they who must take the final decision on the
request for protection.
7.6 As to the “secret” evidence, the State party asserts that there is no
connection between the risk assessment conducted by the Canadian authorities
and the examination of evidence not disclosed to the complainant for
security reasons. In considering the question of risk of torture, the
delegate did not consider the threat to Canada's security posed by the
complainant. Her conclusion was thus not based on undisclosed evidence. The
State party further points out that, under Canada's Immigration and Refugee
Protection Act, in any inquiry to determine whether a foreigner is
inadmissible, a judge may consider relevant information without disclosing
it to the applicant if disclosure would be injurious to national security,
although a summary of the information must be provided to the applicant, and
that was done in this case.
7.7 The State party notes that the allegations regarding failure to apply
the Committee's interim measures and regarding the threats to return the
complainant to a country where he would be at risk of torture were never
raised before the domestic courts. Canada takes its international
obligations under the Convention seriously, but considers that requests for
interim measures are not legally binding. As a result, contrary to the
Committee's decision in Tebourski v. France, [FN8] the State party contends
that non-compliance with such a request cannot in itself entail a violation
of articles 3 and 22 of the Convention. It notes that, in T.P.S. v. Canada,
[FN9] while the Committee expressed concern at the fact that the State party
did not accede to its request for interim measures, it nevertheless found
that Canada had not violated article 3 of the Convention in returning the
complainant to India.
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[FN8] Communication No. 300/2006, Views of 1 May 2007, paras. 8.6 and 8.7.
[FN9] Communication No. 99/1997, Views of 16 May 2000, para. 16.1.
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7.8 As to the assertion that the “threat of return to torture” in itself
constitutes a violation of article 3, in the State party's view this claim
should be declared incompatible ratione materiae with article 3. It is in
any case inadmissible because it fails to demonstrate the minimum
justification. The State party denies having subjected the complainant to
psychological torture and argues that the progress of legal proceedings to
determine a person's admissibility to a country and the mere possibility of
being returned to a country where there was an alleged risk of torture could
not constitute “torture” within the meaning of article 1 of the Convention.
7.9 The State party points out that it always looks very closely at the
Committee's requests for interim measures and usually complies with them. In
this case, after considering the file, and based in part on the negative
findings of the Minister's delegate regarding the risks involved in
returning to India and on the Federal Court's denial of the complainant's
application for a stay, the State party considered that the complainant had
not established that there was a substantial risk of torture in India.
7.10 As regards the allegation of a violation of article 3 of the Convention
based on the complainant's return to India, the State party recalls that the
matter must be weighed in the light of all the information the Canadian
authorities were, or should have been, aware of at the time of expulsion.
The State party recalls that, while torture is still occasionally practised
in India, including in Punjab, the complainant failed to establish that he
personally ran a real and foreseeable risk of torture. It notes that counsel
reports having been told by the complainant's brother-in-law that the
complainant had been beaten and ill-treated by the Indian authorities while
in detention. The State party recalls that the complainant had not been
considered credible by the Canadian authorities and the Committee should
accordingly attach little weight to these claims. Furthermore, article 3
applies only to torture and does not provide protection against
ill-treatment as covered by article 16 of the Convention.
8. In a letter of 24 September 2007 counsel repeats her earlier arguments.
Issues and Proceedings Before the Committee
Consideration of Admissibility
9.1 Before considering a claim contained in a communication, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5 (a), that the same matter has not been, and is
not being, examined under another procedure of international investigation
or settlement and that all available domestic remedies have been exhausted.
9.2 T he Committee takes note of the State party's argument that the
complainant's claims with regard to the pre-removal process, i.e. the
allegedly incorrect and unlawful decisions of the Canadian authorities, the
non-disclosure of certain evidence, the Federal Court's refusal to grant an
interim hearing and its alleged bias, are incompatible ratione materiae with
article 3 of the Convention. However, the Committee considers that such
irregularities must be considered in order to ascertain whether there has
been a violation of article 3 of the Convention.
9.3 As to counsel's claim that the constant threat of being returned to a
country where he would be in danger of torture, which hung over the
complainant for four years, causing him “serious psychological distress”, in
itself constituted a form of torture, the Committee recalls its case law to
the effect the aggravation of a complainant's state of health following
expulsion - or, as in this case, by the threat of return while proceedings
are ongoing - does not in itself constitute a form of torture or of cruel,
inhuman or degrading treatment within the meaning of articles 1 and 16 of
the Convention. [FN10]
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[FN10] See M.B.S.S. v. Canada, communication No. 183/2001, Views of 12 May
2004, para. 10.2; and G.R.B. v. Sweden, communication No. 83/1997, Views of
15 May 1998, para. 6.7.
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9.4 With regard to the State party's contention that the complaint of a
violation of article 3 of the Convention based on the return of the
complainant to India is insufficiently substantiated for the purposes of
admissibility, the Committee considers that the complainant has provided
sufficient evidence to permit it to consider the case on the merits.
9.5 Accordingly, the Committee decides that the complaint is admissible in
respect of the alleged violation of article 3 of the Convention based on the
return of the complainant to India. The claim relating to non-compliance
with the Committee's request to suspend removal also requires consideration
on the merits under articles 3 and 22 of the Convention.
Consideration on the Merits
10.1 The Committee has considered the present communication in the light of
all the information made available to it by the parties, as provided in
article 22, paragraph 4, of the Convention.
10.2 The Committee notes the complainant's contention that the Minister's
delegate, in her decision of 2 December 2003, used irrelevant criteria as
grounds for refusing protection, namely that the person constituted a threat
to Canada's security. The Committee recalls that article 3 affords absolute
protection to anyone in the territory of a State party, regardless of the
person's character or the danger the person may pose to society. [FN11] The
Committee notes that the Minister's delegate concluded in her decision that
the complainant personally ran a real risk of torture if he were returned.
However, she considered that the general interest of Canada's security
should prevail over the complainant's risk of torture, and refused the
protection on this basis.
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[FN11] See Tebourski v. France, communication No. 300/2006, Views of 1 May
2007, para. 8.2. Similarly, the European Court of Human Rights has
considered the protection from torture to be absolute in the event of
removal, as set out in article 3 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, recalling that neither
the behaviour of the victim nor the threat they might pose to national
security should be taken into account when considering a claim (see decision
in Chahal v. United Kingdom).
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10.3 The Committee also takes note of the complainant's argument that, in
the decision of 11 May 2006, the Minister's delegate did not take into
account the complainant's particular situation, and in denying protection
merely cited a supposed improvement in the general conditions in the Punjab.
The State party replied to this argument by stating that it is not for the
Committee to conduct a judicial review of the decisions of the Canadian
courts, and that the Committee should not substitute its own findings for
those of the Minister's delegate, except in case of manifest error, abuse of
process, bad faith, bias or serious procedural irregularities. The Committee
recalls that, while it gives considerable weight to the findings of fact of
the State party's bodies, it is entitled to freely assess the facts of each
case. [FN12] In this case, the Committee notes that, in her protection
decision of 11 May 2006, the Minister's delegate denied the real, personal
threat of torture based on the fresh assessment, and merely accepted that a
new law had been adopted in India apparently protecting accused persons from
torture, without regard to whether the law would effectively be implemented
or how it would affect the complainant's specific situation.
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[FN12] See Dadar v. Canada, communication No. 258/2004, Views of 23 November
2005, para. 8.8. CAT/C/39/D/297/2006
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10.4 As for the Canadian authorities' use of evidence that for security
reasons was not divulged to the complainant, the Committee notes the State
party's argument that this practice is authorized by the Immigration and
Refugee Protection Act, and that in any event such evidence did not serve as
a basis for the decision by the Minister's delegate, as she did not consider
the threat the complainant posed to Canadian security in her assessment of
the risks. However, the Committee notes that, in both her decisions, the
delegate considered the threat to national security.
10.5 On the basis of the above, the Committee considers that the complainant
did not enjoy the necessary guarantees in the pre-removal procedure. The
State party is obliged, in determining whether there is a risk of torture
under article 3, to give a fair hearing to persons subject to expulsion
orders.
10.6 As to the risk of torture at the time the complainant was removed, the
Committee must determine whether, in sending the complainant back to India,
the State party failed to meet its obligation under article 3 of the
Convention not to expel or return anyone to another State where there are
substantial reasons for believing that they would be in danger of being
subjected to torture. In order to determine whether, at the time of removal,
there were substantial reasons for believing that the complainant would be
in danger of being subjected to torture if he was returned to India, the
Committee must take into account all relevant considerations, 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 they were returned.
10.7 The Committee recalls its general comment on the implementation of
article 3, in which it states that the risk of torture «must be assessed on
grounds that go beyond mere theory or suspicion. However, the risk does not
have to meet the test of being highly probable (A/53/44, annex IX, para.
6).
10.8 The Committee must determine whether there were substantial grounds to
believe torture would occur in the light of the information the authorities
of the State party were, or should have been, aware of at the time of
removal. In this case, the Committee notes that all the information before
it, in particular the Canadian Security and Intelligence Service (CSIS)
report and the two pre-removal risk assessments (PRRA), showed that the
complainant was suspected of being a member of BKI, an alleged terrorist
organization, and that a number of attacks on Indian political leaders were
attributed to him. The information obtained after removal, i.e., his
detention and the ill-treatment to which he was allegedly subjected during
his detention in Gurdaspur, is relevant only to assess what the State party
actually knew, or could have deduced, about the risk of torture at the time
the complainant was expelled. [FN13]
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[FN13] See Agiza v. Sweden, communication No. 233/2003, Views of 20 May
2005, para. 13.2; and Tebourski v. France, communication No. 300/2006, Views
of 1 May 2007, para. 8.1.
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10.9 The Committee also notes that, according to various sources and the
reports provided by the complainant, the Indian security and police forces
continue to use torture, notably during questioning and in detention centres,
especially against suspected terrorists.
10.10 In the light of the foregoing, and taking account in particular of the
fact that the complainant is allegedly a member of what is regarded as a
terrorist organization, and that he was wanted in his country for attacks on
several public figures in Punjab, the Committee considers that, by the time
he was returned, the complainant had provided sufficient evidence to show
that he personally ran a real and foreseeable risk of being subjected to
torture were he to be returned to his country of origin. The Committee
therefore concludes that, under the circumstances, the complainant's removal
to India constituted a violation of article 3 of the Convention.
10.11 As regards non-compliance with the Committee's requests of 14 and 30
June 2006 to suspend removal, the Committee recalls that the State party, by
ratifying the Convention and voluntarily accepting the Committee's
competence under article 22, undertook to cooperate with the Committee in
good faith in applying and giving full effect to the procedure of individual
complaints established thereunder. The Committee also notes that the State
party's obligations include observance of the rules adopted by the
Committee, which are inseparable from the Convention, including rule 108 of
the rules of procedure, which is specifically intended to give meaning and
scope to articles 3 and 22 of the Convention. [FN14] Consequently the
Committee considers that, by sending the complainant back to India despite
the Committee's repeated requests for interim measures, the State party has
committed a breach of its obligations under articles 3 and 22 of the
Convention.
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[FN14] See Dar v. Norway, communication No. 249/2004, Views of 11 May 2007,
para. 16.3; and Tebourski v. France, communication No. 300/2006, Views of 1
May 2007, para. 8.6.
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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, concludes that the expulsion of the complainant to
India on 2 July 2006 was a violation of articles 3 and 22 of the Convention.
12. In conformity with article 112, paragraph 5, of its rules of procedure,
the Committee wishes to be informed, within 90 days, of the steps taken by
the State party to respond to these Views, to make reparation for the breach
of article 3 of the Convention, and to determine, in consultation with the
country to which he was deported, the complainant's current whereabouts and
the state of his well-being.
[Adopted in English, French, Russian and Spanish, the French 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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