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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 9 May 2008,
Having concluded its consideration of complaint No. 293/2006, submitted on
behalf of Mr. J.A.M.O., his wife Mrs. R.S.N., and his daughter Ms. T.X.M.S.,
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
complainants and the State party,
Adopts the following:
Decision of the Committee against Torture under article 22, paragraph 7, of
the Convention
1.1 The complainant, Mr. J.A.M.O., a Mexican citizen, resides in Canada and
is the subject of an order for expulsion to his country of origin. He
submits his complaint also on behalf of his wife, Mrs. R.S.N., and his
daughter, Ms. T.X.M.S. He claims that his forced return to Mexico would
constitute a violation, by Canada, of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the State party's attention in a note
verbale dated 19 May 2006. At the same time, the Committee, pursuant to rule
108, paragraph 9, of its rules of procedure, requested the State party not
to deport the complainant to Mexico while his complaint was being
considered. In response to this request, the State party decided to defer
the deportation.
The Facts as Submitted by the Complainants
2.1 In September 1995, the complainant was employed at vehicle pound No. 1
of the Procurator-General's Office (Procuraduría General de la Justicia) in
Mexico City, where he was in charge of human resources. His two supervisors
were Mr. J.C. and Mr. A.B. From the beginning of his employment he noticed
there was corruption within the pound. He states that the workers used
extortion against vehicle owners with the consent of the supervisors. They
"asked for money to return vehicles, for towing, for the sale and purchase
of vehicles or parts, for 'quicker' services, for information, and for
privileged access to private tow-trucks". He also noticed that there was
trading in drugs and weapons, as well as illicit dealings with insurance
companies.
2.2 The complainant was threatened by Mr. J.C., who accused him of having
reported the above-mentioned facts to the Procurator-General's Office. At
one point he called the complainant into his office, where two men beat him
up. Owing to this situation the complainant requested a transfer to vehicle
pound A in Mexico City in March 1997. Later he was also transferred to other
vehicle pounds, always at the instigation of Mr. A.B. In September 1997, Mr.
A.B. was murdered. The very next day, the complainant began to receive
anonymous death threats over the telephone. Suspecting Mr. J.C., he resigned
from his job and moved to Cuautla. His wife stayed in Mexico City to work,
but she moved to a different apartment. In July 1999 he again received death
threats from Mr. J.C., who accused him of having destroyed his extortion
network. The complainant did not dare to report this to the police, since he
feared that was the very reason why Mr. A.B. had been murdered. The
complainant claims that Mr. O.E.V., the former mayor of Mexico City, was
ultimately responsible for the corruption network, and that Mr. O.E.V.'s
collaborators are seeking to "eliminate" him and his family in order to
protect their boss.
2.3 On 2 August 1999, the complainant left Mexico with his family for
Canada, where he filed a request for refugee status on 23 September 1999. On
10 July 2000, the Canadian Immigration and Refugee Board (CISR) rejected the
request on the grounds that the complainant had not furnished sufficient
evidence of the risk that he faced in Mexico. The complainant submitted an
application for authorization of a judicial review before the Federal Court,
which was also rejected on 8 November 2000.
2.4 On 14 July 2002, the complainant and his family returned to Mexico,
where they received new threats, including threats to his family. The
complainant therefore returned to Canada as a tourist, but after October
2003 he was no longer entitled to that status and he remained in the country
illegally. His family remained in Mexico. Between December 2002 and April
2003, his son received numerous threats from soldiers and police officers in
the State of Hidalgo, who were apparently looking for his father.
2.5 On 2 August 2004, there was a fire at the complainant's apartment, and
he suffered serious burns. He remained in hospital for several months.
Following this incident, his wife and daughter joined him in Canada.
2.6 On 19 November 2004, the complainant submitted a pre-removal risk
assessment (PRRA) application, which was rejected on 7 December 2004. He and
his family also submitted a Humanitarian and Compassionate application (H&C)
for an immigration visa in March 2005, which was rejected on 4 July 2005.
They were therefore requested to present themselves for departure on 5 July
2005, but their removal was postponed in order to allow the complainant to
continue medical treatment in Canada.
2.7 In February 2005, based on his health problems, the complainant and his
family filed an application for residence on humanitarian grounds, in order
to be able to remain in Canada, since the complainant could not receive the
necessary medical care in Mexico. This application was rejected on 4 July
2005.
2.8 The complainant submits that his daughter-in-law, Mrs. V.V.J., who had
remained in Mexico and had lived in his home even since her husband had left
for Canada following the complainant's accident, on numerous occasions
between August and November 2004, had been visited by unknown persons who
were asking for him and had threatened her with a revolver. She had also
been threatened over the telephone. Some of the unknown persons had been
wearing coats that were part of the PGJ (Procuraduría General de la Justicia)
uniform, and travelled in a car without registration plates. On one occasion
the house was broken into. It was because of this that she had left Mexico
on 2 December 2004 to apply for refugee status in Canada. On 21 December
2005 she was granted refugee status under the Geneva Convention, even though
her case was based entirely on that of the complainant.
2.9 The complainant sent the Committee a copy of the decision in which the
Canadian Immigration and Refugee Board of Canada granted Mrs. V.V.J.'s
asylum request. The Board took into account the following aspects: "the
claimant testified that she tried on two occasions to telephone the police
but received no reply and no assistance. The Tribunal gives the claimant the
benefit of the doubt regarding this aspect, given that she is a young woman
residing alone, who was trying to live her life with no support and minimal
resources at her disposal. Thus, in view of all of the evidence submitted to
the Tribunal, and the Chairperson's Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution, the panel considers that the claimant
has met the burden of proof and gives her the benefit of the doubt on
certain credibility issues that have been raised."
2.10 In the light of that decision, the complainant submitted new visa
exemption applications on humanitarian grounds and a PRRA, which were also
rejected on 19 May 2006. Prior to that, on 21 April 2006, the complainants
had reported to the Canada border services agency, where they had been told
to report to Trudeau Airport on 20 May 2006 in order to leave Canada. On 27
November 2006, the Federal Court rejected an application for a judicial
review of the previous PRRA decision.
The Complaint
3. The complainants allege that if they were returned to Mexico they would
be in grave danger of being subjected to torture and ill-treatment, or even
death, in violation of article 3 of the Convention.
State Party's Observations
4.1 In a note verbale dated 7 March 2007, the State party submitted its
comments on the admissibility and, additionally, on the merits of the
complaint. The State party contends that the complaint is inadmissible in
respect of Mrs. R.S.N. and Ms. T.X.M.S., since they are not subject to an
expulsion order from Canada. Their complaint is therefore premature. The
complainant's case is also inadmissible; it is manifestly unfounded, given
the lack of evidence and the fact that the alleged risks do not fall within
the definition contained in article 1 of the Convention. The complaint is
therefore incompatible with article 22.
4.2 The State party describes the different remedies invoked by the
complainant. With regard to the denial of refugee status, CISR decided that
the evidence submitted was insufficient to show that there was a basis for
the request. It also noted that the complainant had not sought the
protection of the Mexican authorities. The evidence before CISR indicated
that State protection was available and would have been effective. According
to the complainant's testimony, the Mexican authorities had conducted an
investigation into corruption at the vehicle pound after a complaint had
been filed by a client, and it had made some arrests following the murder of
the complainant's former employer. Indeed, according to the allegations, the
Mexican authorities had dismantled the alleged "corruption network". CISR
also raised doubts about the existence of a subjective fear, highlighting
the complainants' lack of urgency in filing their claims for refugee status
after arriving in Canada. Later, they renounced the PRRA, opting instead to
leave Canada voluntarily on 14 July 2002, in order to apply for immigration
visas from the Delegation of Quebec in Mexico, which they would not have
been able to do had they remained in Canada. Their application was denied,
however.
4.3 On 19 November 2004, the complainant submitted a PRRA application
alleging the same risks of persecution as had been mentioned in his request
for refugee status, which had been rejected. The PRRA officer noted firstly
that the complainant had not submitted any evidence of the threats which he
allegedly had received during his visit to Mexico between 14 July and 16
October 2002. The officer also noted that the complainant's behaviour did
not corroborate the existence of such threats, since he had returned to
Canada on his own, leaving behind his wife and two children, even though he
claimed that the whole family was being targeted by the new threats and that
his children and home had been visited and put under surveillance by
individuals wishing to do him harm. Furthermore, his family had stayed in
Mexico without any apparent difficulties until August 2004, when they had
returned to Canada because of the complainant's accident, and not in order
to flee from threats or danger in Mexico. The PRRA officer also noted that
the complainant's return to Canada on 16 October 2002 did not prove that
there was any subjective fear on his part, since he had been planning to
return all along, having left all his family belongings in the apartment
that he had been renting in Canada since 1999. The PRRA officer further
concluded that there was no evidence that the complainant could not benefit
from the protection of the Mexican authorities. The complainants had not
challenged the rejection of their PRRA application before the Canadian
Federal Court.
4.4 Regarding the application filed on humanitarian grounds, the deciding
officer noted that it contained no new evidence that would allow him to
arrive at a different conclusion from that reached by CISR and the PRRA
officer. The complainants had still not provided any evidence to
substantiate the alleged risks. The lack of evidence also prompted the
deciding officer to reject the allegation based on the state of health of
the complainant, since the latter had failed to prove that he would be
unable to receive the necessary treatment in Mexico.
4.5 The complainant submitted a second PRRA application on 12 April 2006, in
which he argued that his daughter-in-law, Mrs. V.V.J., had obtained refugee
status in Canada and that her asylum application was based entirely on his
story and testimony. He also alleged, for the first time, that Mr. O.E.V.,
the former Mayor of Mexico City, was behind the death threats that he had
allegedly received in Mexico. The PRRA officer who had rejected his
application noted that each request for protection was a specific case and
that he was not bound by the conclusions reached by CISR in the
daughter-in-law's case. The officer noted that the complainant had not
produced all the evidence and documents that had been submitted to CISR in
support of the daughter-in-law's asylum application. In particular, he had
not provided her personal information form, which would have shown the exact
grounds given in her application. CISR had given her the benefit of the
doubt, despite certain discrepancies in her statement, on account of the
fact that she was a young woman living on her own in Mexico, and in
implementation of the "Chairperson's Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution". The PRRA officer further noted that the
asylum application of the daughter-in-law was not based exclusively on the
complainant's allegations and testimony. His son had also submitted an
affidavit in support of the application, in which he mentioned threats and
persecution, which were not shown to be linked with the complainant. It was
therefore unclear which testimony CISR had used as a basis for granting the
daughter-in-law refugee status. The PRRA officer concluded that the
complainant had failed to show a link between the former mayor's legal
troubles and the problems that the complainant allegedly had with the
managers of the vehicle pounds where he had worked. The officer also noted
that the complainant had not raised the issue of the risk before and that
the evidence did not support the allegation. The complainants did not
challenge the dismissal of their PRRA application before the Federal Court.
4.6 Regarding the second application on humanitarian grounds, the deciding
officer noted that the complainant had completed his medical treatment in
April 2006 and had declared himself fit for work. Although he claimed that
he needed aftercare and access to appropriate medical services, he provided
no details as to the aftercare and medical services which he allegedly
required. On the issue of the complainants' links with Canada, the PRRA
officer noted that the complainants were not financially independent in
Canada and that they had provided no evidence of their alleged integration
into the community. The deciding officer therefore concluded that, under the
circumstances, return to Mexico would not cause the complainants any unusual
and unjustified or excessive difficulties.
4.7 The State party maintains that the complaint is incompatible with
article 22 of the Convention, since the alleged risks do not constitute
torture for the purposes of the Convention. Torture, as defined in article
1, requires that the suffering be inflicted "by or at the instigation of or
with the consent or acquiescence of a public official or other person acting
in an official capacity". In the present instance, it has not been shown
that the persecuting agent is a public official or is acting in an official
capacity. By all accounts Mr. O.E.V. does not perform a public function in
Mexico and does not act in an official capacity on behalf of the Mexican
authorities. Regarding Mr. O.E.V.'s alleged "collaborators", the
complainants have not furnished any evidence to show that those persons are
public officials or persons acting in an official capacity. The only
"collaborator" that the complainant identified was Mr. J.C., who, according
to the complainant, also had problems with the law. However, no information
has been provided on his current situation. Given the lack of evidence, or
even an allegation, that Mr. O.E.V. and his collaborators were acting in an
official capacity, the complaint should be declared inadmissible.
4.8 The complaint is also manifestly groundless, since there is no evidence
whatsoever of the existence of the threats and persecution, nor is there any
evidence that Mr. O.E.V. is seeking to "eliminate" the complainant and his
family or would have any interest in doing so. The complaint is based on
mere speculation, which is neither plausible nor rational.
4.9 The State party affirms that the complainant's testimony at the hearing
for his daughter-in-law contradicts his allegations before the Committee and
before the Canadian authorities in the context of his own complaint. He had
alleged that he had received death threats, including against his family,
during his three-month stay in the State of Hidalgo from 14 June to 16
October 2002. On 11 October 2005, however, in support of his
daughter-in-law's asylum claim, he declared that he had not been the victim
of any threats or persecution during that time. Taking this contradiction
into account, the State party maintains that the complainant's allegations
are not credible. Furthermore, the State party maintains that the
complainants failed to show that no domestic remedies were available against
Mr. O.E.V.'s alleged collaborators.
4.10 Besides its comments on admissibility, the State party maintains that
the complaint should be dismissed on the merits, for the above-mentioned
reasons regarding the lack of basic merit.
Complainants' Comments
5.1 As regards the admissibility of the communication vis-à-vis the
complainant's wife and daughter, counsel asserts that their status is very
precarious and that they are liable to be expelled from Canada. The wife and
daughter should form an integral part of the complaint because, in addition,
they are also in danger as members of the family.
5.2 The complainant also considers that he has submitted sufficient evidence
to have the protection of the State party. Concerning Mr. O.E.V., he states
that this person enjoys the support of very powerful people in the Mexican
Government and that his daughter-in-law was persecuted by men who seemed to
be police officers and who resembled the men who had been working in the
compound of the Attorney General's Office. As to the State party's
observation that Mr. O.E.V. is no longer a public official, the complainant
emphasizes that he has been mayor of Mexico City and that he has contacts
with powerful public officials in Mexico. Consequently, the complainant and
his family are at risk of being tortured by serving public officials and
former officials.
5.3 The complainant has always affirmed that in the State of Hildago, where
they remained in hiding, he did not receive death threats. However, the
threats were received at his home in the Federal District where his parents
lived. Contrary to the Government's statement, he did not say that he had
not been the victim of threats or persecution during this period, but rather
that he had not directly received threats in the State of Hildago.
5.4 The applicant states that he sent a letter to the Mexican consulate
saying that there was no hospital in Mexico where he could be treated. A
letter of 3 May 2005 from his Canadian doctor stated that he would need
further treatment in a specialized rehabilitation unit for about one year.
However, that had not been taken into account by the Canadian authorities.
It was only after the publication of several press articles about his case
that his expulsion was deferred by six months.
5.5 According to the complainant, after his asylum hearing on 6 June 2000,
no Canadian agency would listen to his argument. All the proceedings were in
writing. In each PRRA application he could have been asked to attend a
hearing in order to make his allegations better understood, but he was never
invited. Often, the decisions were taken very quickly and without assessment
of the evidence. In addition, the same official reached a decision on his
first and second humanitarian applications and his second PRRA application.
An effective remedy would be the Refugee Appeal Section, which the State
party was unwilling to bring into play, despite the fact that it is covered
by the new Immigration Act. The Federal Court is an effective remedy, but
limited to procedural errors. It does not analyse cases on their merits, and
if it decides in favour of applicants the case is referred to the preceding
body for a new analysis and decision. The PRRA is not an effective or
adequate remedy, and its officials are insensitive to the suffering and
risks faced by persons who fear being deported to countries where they may
be subjected to torture or cruel treatment or punishment.
5.6 As to the fact that the applicant did not challenge the rejection of his
first PRRA application, he states that he could not afford and had no
possibility of obtaining legal assistance. Moreover, he did not believe in
the effectiveness of such a remedy.
5.7 Concerning the immigrant visa application lodged with the Delegation of
Quebec in Mexico in July 2002, the complainant states that he decided to
leave for Mexico because the Quebec authorities were unwilling to interview
him in Montreal. He gave up the Post-Determination Refugee Claimants in
Canada (PDRCC) Class because it was even more difficult to join than the
PRRA programme and he was sure that he would be accorded his immigrant visa.
5.8 Contrary to the State party's affirmation, the complainant did not
return to Canada three months after his immigration application had been
rejected, but only two days after having received a refusal of the
application for a review of the initial decision. That shows his fear due to
the alleged danger. His family remained in hiding in Mexico. When his sister
went to the Attorney General's Office in the Federal District to ask for an
attestation of employment which he had to submit to the Canadian
authorities, the officials insisted on seeing him and obtaining his address,
stating that they had matters to settle with him.
5.9 As to the complainants' links with Canada, he submits copies of a 2004
attestation of employment (Parc Hotel Management), a letter from his
employer dated January 2007 (OCE Business Services) and Revenue Canada's
Contribution Assessment for 2006. He also submits the temporary work permit
issued to his wife, letters attesting to his participation in the research
project run by the McGill University physiotherapy and ergonomics school, a
certificate of participation in the support group for serious burns victims
and a confirmation of his participation in the CHUM hospital's serious burns
study.
Comments Concerning the Complainant's Family
6.1 In a letter of 24 May 2007 the complainant states that, when he
submitted his case to the Committee, his wife and daughter were awaiting a
reply to their application for extension of their visitor status. They were
not therefore about to be expelled from Canada. Their applications were
approved on 28 February 2007 but only until 15 August 2007. It is clear that
they have exhausted all remedies: application for refugee status, two
humanitarian applications, three applications to the Federal Court of
Canada, a PRRA application, etc. Visitor status is totally precarious and
does not guarantee residence in the country. The case of the daughter-in-law
demonstrates that the people persecuting the complainant decided to target
other members of the family. Consequently, these two people should form part
of the complaint before the Committee.
6.2 In a letter of 26 June 2007, the State party replied that the complaint
had been submitted in the name of three people. However, the complainant's
wife and daughter had never been the subject of a deportation order. The
wife and daughter held renewable visitor's visas valid until 15 August 2007.
Consequently, the complaint was manifestly premature and inadmissible with
respect to them.
Additional Submission of the State Party
7.1 In a note verbale dated 31 July 2007, the State party reiterates that
there is no evidence corroborating the existence of the threats and
persecution to which the complainants claim they were subjected in Mexico.
None of the documents that they have submitted establishes any link between
them and Mr. O.E.V. The complainants have likewise not furnished evidence
leading to the conclusion that Mr. O.E.V. or his alleged colleagues meet the
requirements of article 1 of the Convention. According to the complainant's
allegations, Mr. O.E.V. is a fugitive from Mexican justice. This is
therefore incompatible with the claim that he enjoys the support of the
Mexican authorities. Even if he did have such support, the complainants
would still have to demonstrate that he instigated or agreed to the alleged
persecution. However, no evidence of this kind has ever been presented.
7.2 In addition, Mrs. V.V.J.'s asylum application was not based exclusively
on the allegations and testimony of the complainant. Mr. J.A.M.S., the
complainant's son and husband of Mrs. V.V.J., had also submitted an
affidavit in support of the latter's asylum application. In it he claimed
that he had had problems with "four soldiers and two PDJ officials", whose
link with the complainants has not been established. It is therefore not
clear what testimony led the CISR to grant Mrs. V.V.J. refugee status.
Moreover, the fact that the CISR rejected the asylum application by Mrs.
V.V.J.'s husband is not without significance.
7.3 As to the threats which the complainant allegedly received during his
visit to Mexico in 2002, if they had been genuine he would have mentioned
them to CISR in order to justify his alleged fear. However, neither he
himself nor his son nor Mrs. V.V.J.'s lawyer informed CISR of the existence
of any threat received during that time.
7.4 The complainant has given only one example of "threats" that he
allegedly received in Mexico between 14 July and 16 October 2002. He claims
that his sister went to his former workplace in order to obtain an
attestation of employment and that she was forcefully questioned about him.
However, this allegation is not based on any evidence and is not credible
since the "unidentified" persons who thus "threatened" the complainant's
sister nevertheless gave her the attestation of employment. In addition, the
documentary evidence shows that the complainants were not in the State of
Hildago during their three-month visit to Mexico in 2002. In various
applications to the Canadian authorities, they stated that they had been
staying in Cuautla (Morelos) during the period in question, in other words,
the very place where they claim to have received death threats.
7.5 As regards the allegation that the PRRA official did not give sufficient
weight to the CISR decision in the case of Mrs. V.V.J., the State party
reiterates that this is not "evidence" capable of corroborating the
complainants' allegations.
7.6 The State party reiterates that the complaint is premature and
inadmissible in respect of Mrs. R.S.N. and Ms. T.X.M.S., since they are not
the subject of an expulsion order.
7.7 In the same note verbale the State party requested the lifting of the
interim measures relating to the complainant, because it has not been
established that he would suffer irreparable harm following his deportation
to Mexico. In addition, the request for interim measures made on 19 May 2006
only concerned the complainant. If Mrs. R.S.N. and Ms. T.X.M.S. were also
covered by the request for interim measures, the State party maintains that
this request should be withdrawn in respect of all the complainants for the
reason given above.
7.8 The State party maintains that the requests for interim measures are not
appropriate in cases, like the present one, which do not reveal any manifest
error on the part of the Canadian authorities and which have not been
characterized by procedural abuses, bad faith, manifest bias or serious
procedural irregularities.
Submission of the Complainant
8.1 In a letter of 12 August 2007 counsel asked the Committee to grant
interim measures to Mrs. R.S.N. and Ms. T.X.M.S., given the fact that their
visitor status would expire on 15 August 2007. [FN1]
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[FN1] The Committee did not accede to this request. On the other hand, the
interim measures benefiting the complainant were maintained.
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8.2 In a letter of 2 September 2007 the complainant reaffirms that, contrary
to the claims of the Canadian Government, the asylum application filed by
Mrs. V.V.J. was based mainly on the persecution that he had suffered and
which also affected family members. In the asylum application there were no
other grounds than the fact that she had been persecuted for reasons having
to do with the activities of her father-in-law. 8.3 As to the complainants'
address in Mexico in 2002, they reiterate that they were staying in the
State of Hidalgo. If that was not clear from some of the forms that they had
filled out, it was a question of an involuntary error, owing to the fact
that they did not consider it to be their real address.
Issues and Proceedings Before the Committee
Examination of Admissibility
9.1 Before considering a claim 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
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.
9.2 The Committee notes that the State party has raised an objection to
admissibility based on the fact that the communication is manifestly
unfounded, in its view, given the lack of evidence and the fact that the
risk alleged by the complainant does not correspond to the definition in
article 1 of the Convention. The complaint would therefore be incompatible
with article 22 of the Convention. The Committee is of the opinion, however,
that the arguments before it raise substantive issues which should be dealt
with on the merits and not on admissibility alone. In the absence of any
other obstacles to admissibility, the Committee declares the communication
admissible with respect to Mr. J.A.M.O.
9.3 The State party also contests admissibility with regard to Mrs. R.S.N.
and Ms. T.X.M.S., respectively the wife and daughter of the complainant, on
the grounds that they have visitors' status and are not therefore subject to
a deportation measure. The Committee takes note, however, of the
complainant's contention regarding the precarious nature of visitor's status
and it considers that the risk of deportation also exists for the two women.
It therefore regards this part of the communication also to be admissible.
Merits of the Communication
10.1 The issue before the Committee is whether the forced return of the
complainants to Mexico would violate the State party's obligation under
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.
10.2 In evaluating the risk of torture, 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 or her
return to that country; additional grounds must exist to show that the
individual concerned would be personally at risk. Similarly, the absence of
a consistent pattern of gross violations of human rights does not mean that
a person cannot be considered to be in danger of being subjected to torture
in his or her specific circumstances.
10.3 The Committee recalls its general comment No. 1 on implementation of
article 3 of the Convention in the context of article 22, which states that
the Committee is to assess whether there are substantial grounds for
believing that the complainant would be in danger of torture if returned to
the country in question. The risk of torture need not be highly probable,
but it must be personal and present.
10.4 As to the burden of proof, the Committee also recalls its general
comment and its jurisprudence, which establishes that the burden is
generally upon the complainant to present an arguable case and that the risk
of torture must be assessed on grounds that go beyond mere theory or
suspicion.
10.5 The Committee takes note of the complainants' arguments, and the
evidence provided to substantiate the latter was submitted to different
authorities of the State party. In this connection, it also recalls its
general comment, which states that considerable weight will be given to
findings of fact that are made by organs of the State party; however, the
Committee is not bound by such findings and instead has the power, provided
by article 22, paragraph 4, of the Convention, of free assessment of the
facts based upon the full set of circumstances in every case. In particular,
the Committee must assess the facts and evidence in a given case, once it
has been ascertained that the manner in which the evidence was evaluated was
clearly arbitrary or amounted to a denial of justice, and that domestic
courts clearly violated their obligations of impartiality. [FN2] In the case
under consideration, the evidence before the Committee does not show the
examination by the State party of the allegations of the complainant to have
been marred by any such irregularities.
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[FN2] See the Committee's decision in case No. 282/2005, S.P.A. v. Canada (para.
7.6). See also, for example, the Committee's decision in case No. 258/2004,
Dadar v. Canada, where it states that while it "gives considerable weight to
findings of fact made by the organs of the State party, it has the power of
free assessment of the facts arising in the circumstances of each case" (para.
8.8).
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10.6 In assessing the risk of torture in the case under consideration, the
Committee notes the absence of objective evidence pointing to the existence
of risk other than the complainant's own account. The fact that at no time
did the complainant seek the protection of the Mexican authorities, the
inaccuracies regarding the identity of the persons who made the threats of
which he complains, the time that has elapsed since the complainant left his
job at the vehicle pound and the country, and the fact that his wife and
daughter do not appear to have been targeted by such threats, do not allow
for a finding that the complainants are the subject of persecution by the
Mexican authorities and that they would run a foreseeable, real and personal
risk of being tortured if they are expelled to their country of origin.
10.7 With regard to the complainant's argument that the asylum application
filed by Mrs. V.V.J. was based mainly on the persecution that he had
suffered, the Committee notes that the decision by CISR took account of
factors specific to her, including the fact that she was a young woman
residing alone who was trying to live her life with no support and minimal
resources at her disposal, as well as the Chairperson's Guidelines on Women
Refugee Claimants Fearing Gender-Related Persecution.
11. Accordingly, the Committee against Torture, acting under article 22,
paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, considers that the expulsion of the
complainants to Mexico by the State party would not constitute a breach of
article 3 of the Convention.
[Adopted in French (original version), English, Spanish and Russian.
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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