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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 18 November 1999,
Adopts the following:
Decision on Admissibility
1.1 The author of the communication is P. S., an Indian national born in the
Punjab in 1944 and currently resident in Canada, where he is seeking asylum
and faces deportation. He claims that his return to India 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 communication to the attention of the State party on 3
September 1997.
Facts as Presented by the Author
2.1 The author used to be a farmer belonging to the Bhrat Kissan Union, a
trade union whose objective is to put pressure on the federal Government to
improve agriculture and conditions for farmers. He was arrested and detained
for several days in 1989, 1990 and 1992. In November 1993, four Sikh
militants wanted by the police hid in his sugar-cane field. The police
questioned him about the militants and, not convinced that he had nothing to
do with them, arrested him. He was tortured while in detention. Among other
methods of torture, the police hung him from the ceiling and then abruptly
released the rope holding him up, whereupon he fell to the floor,
dislocating his shoulder. He was released on 29 November 1993 after his
brother had handed over a sum of money and on condition that he collaborate
with the police. He decided to move to Panchkula, in Haryana province, and
then to New Delhi, where he obtained a passport. During his stay in
Panchkula, the police harassed his wife to make her say where he was. On 5
February 1994, she too was arrested.
2.2 The author states that he paid an agent to help him obtain a Canadian
visa. On 10 June 1994, he left India for the United Kingdom, where he stayed
for some months before going on to Canada.
2.3 On 30 August 1994, the author applied for refugee status, but his
application was rejected in February 1996 by the Immigration and Refugee
Board. He then applied to the Federal Court for leave to seek judicial
review of the rejection. That application was rejected on 17 June 1996.
Finally, the author submitted his case to a "post-claim determination
officer" at the Ministry of Citizenship and Immigration to determine whether
he could settle in the country as a "non-recognized applicant for refugee
status in Canada". Before granting that status, an immigration officer must
determine whether repatriation would constitute a risk to the applicant's
life or safety.
2.4 On 23 September 1996, the immigration officer determined that the
applicant was not one of those covered by the risk of return programme. The
author was therefore summoned to the Immigration Centre on 22 October 1996
so that an expulsion order could be served on him. The author claims that
the post-claim determination officer's decision was illogical, since it
merely repeated the decision of the Immigration and Refugee Board without
taking into account the reports [FN1] of two health experts (a psychologist
and a doctor) who had concluded that his allegations of torture were
credible. The psychologist had diagnosed "a state of chronic post-traumatic
stress caused by his illegal detentions and the torture and police brutality
he had been subjected to in prison, death threats, police brutality to his
wife which he had witnessed, death threats and a major bout of depression
caused by the loss of significant social roles".
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[FN1] These reports are dated 23 June 1995 and 17 July 1995, respectively.
According to the doctor's report, the author stated that he had also been
tortured in detention in December 1990 and July 1992.
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The Complaint
3. The author argued that he would be imprisoned, tortured or even killed if
he returned to India, where human rights violations within the meaning of
article 3, paragraph 2, of the Convention are frequent, particularly against
Sikhs; he provided reports from non-governmental sources containing
information to that effect. He also submits a medical certificate dated 28
August 1996, which confirms the existence of scars and conditions that may
be consistent with his allegations of torture. To support his complaint he
refers to other decisions on asylum in which the Canadian authorities
recognize that Sikhs have been subject to persecution in India. Lastly, he
claims that, if he were obliged to return to India, he would no longer be
able to apply to the Committee, since India is not a party to the
Convention.
State Party's Observations on Admissibility
4.1 In its response of 26 March 1998, the State party contests the
admissibility of the communication. It states that, in the first place, the
author of the communication has not exhausted all available domestic
remedies and secondly, the communication does not give substantial grounds
for believing that the author's return to India would place him in danger of
being subjected to torture.
4.2 The author has twice applied to the Federal Court for leave to seek
judicial review of the post-claim determination officer's decision: on 8
October 1996 (when he represented himself) and on 11 October 1996 (through
counsel). He withdrew his first application on 31 October 1996. As to the
second application, since the author had not submitted the requisite
documents in time and had not requested an extension in order to do so, it
was rejected by the Federal Court on 31 January 1997.
4.3 On 18 October 1996, the author applied to settle in Canada as an
exception to the immigration regulations requiring the application to be
made abroad. This request, for what is known as a "ministerial dispensation
on humanitarian grounds", was denied as unfounded. The author could have
sought judicial review of the denial of ministerial dispensation on
humanitarian grounds but did not do so. This remedy is still available even
though the time limit has run out, since it is possible to request an
extension.
4.4 The author was summoned on 22 October 1996 to the Immigration Centre in
Montreal so that arrangements could be made for his departure from Canada.
However, he did not appear as requested. A warrant for his arrest was
therefore issued on 4 February 1997. To date, the author has neither been
arrested nor returned to his country and is at an unknown address.
4.5 The Convention provides for two exceptions to the requirement that all
available domestic remedies must have been exhausted. An individual does not
need to resort to remedies whose application is unreasonably prolonged or
which are unlikely to bring effective relief. The remedy of judicial review
of the immigration official's decision to deny the author the status of
"non-recognized applicant for refugee status" is not covered by either of
these exceptions.
4.6 This remedy could be applied within a reasonable period. Although the
law does not provide for automatic suspension, the Federal Court is by
definition competent to suspend an expulsion order while an application for
judicial review is processed. In order to obtain such a suspension, the
applicant must show: (i) that the application concerns an issue of substance
to be resolved by the Court; (ii) that he would suffer irreparable damage if
the suspension was not granted; and (iii) that the balance of disadvantages
favours him. Such a request can, if necessary, be submitted and heard as a
matter of urgency, sometimes within a few hours.
4.7 Moreover, this remedy would in all likelihood have given the author some
relief. If the Federal Court had been satisfied that an error had been made
by the administrative authorities, it could have ordered a new inquiry to be
held. Any fresh consideration of the case based on the Federal Court's
Guidelines would have been likely to grant the author the right to settle in
Canada. In addition, an application for judicial review of the denial of
ministerial dispensation might ultimately have made it possible for him to
settle in the country on humanitarian grounds.
4.8 For a communication to be admissible, it must provide at least some
backing for the allegations it makes about violations of the Convention by
the State concerned. If this is lacking, the communication does not comply
with article 22 of the Convention and is therefore inadmissible. In the
present case, the author has not established substantial grounds for
believing that he personally would be in danger of being subjected to
torture if he returned to India.
4.9 The State party recognizes that India's human rights record has given
rise to considerable concern. Nevertheless, the situation in India and, in
particular in the Punjab, has significantly improved in recent years, as
shown in the United States Department of State Country Report on Human
Rights Practices for 1997 concerning India, published on 30 January 1998.
Since the new Government took office in June 1996, a number of steps have
been taken to ensure greater respect for human rights in India. For example,
the Government signed the Convention on 14 October 1997 and announced its
intention to take steps to prevent and punish acts of torture on its
territory.
4.10 In February 1997, four experts on the Punjab provided information to
the Immigration and Refugee Board on various issues relating to human
rights, peace and order in India. According to these experts, the central
Government has for several years been trying to bring the Punjabi police,
who have been responsible for many extrajudicial executions and
disappearances during the fight against insurgents, to heel. While in the
late 1980s and early 1990s a blind eye was turned to police abuses, it is
now recognized, particularly by the Ministry of the Interior and the Supreme
Court in New Delhi, that the Punjabi police need to be brought under
control. As a result, many cases against Punjabi police officers have been
reopened. However, the experts say that the climate of impunity that
protects the Punjabi police will change only slowly, because the problem is
a long-standing one, rooted in firmly entrenched attitudes.
4.11 According to one of the experts, the use of force is part of the
culture of the Punjabi police, who still have the power to commit many
unacceptable acts without being held accountable. For example, they still
have the power to take people to the police station and mistreat them.
Police torture is endemic in India. Another of the experts emphasized that,
although the ill-treatment meted out to detainees in Punjab is serious, it
is no worse than elsewhere in India today. The experts also pointed out that
those who are not suspected of being leading activists are not at risk in
Punjab today, and have considerably better access to the legal system if
they do suffer ill-treatment.
4.12 As regards the possible risks faced by those returned to India by
Canada, one of the experts stated that representatives of the Canadian High
Commission in New Delhi regularly observed the arrival of persons deported
from Canada at the airport. There have been eight or ten such cases in
recent years and the Indian authorities have left all these people alone,
apart from one leader of the Khalistan Commando Force, who was arrested. The
expert also stated that in the last few years, Canadian High Commission
staff in New Delhi have held immigration interviews with many dependants of
people from the Punjab to whom Canada has granted refugee status. In the
overwhelming majority of cases, the dependants do not corroborate their
relative's statements, indicating that the relative went to Canada for
economic reasons.
4.13 According to the State party, neither the Immigration and Refugee Board
nor the reviewing official found the author's allegations credible, because
of the numerous inconsistencies they discovered in the course of their
inquiries. They also noted that the author's behaviour between the time of
his release in November 1993 and his application for refugee status in
Canada in August 1994 was inconsistent with fear of persecution by the
police. As a farmer, the author was hardly likely to be considered a
"leading activist". He would therefore not be in any danger of torture if he
returned to his country.
4.14 The State party therefore concludes that the author's communication
demonstrates no special circumstances in support of the allegation that he
would face a real and personal risk of being subjected to torture. Although
the author alleges that he was tortured by the Indian authorities between 25
and 29 November 1993 and says he fears police persecution, there is no
indication that the Indian authorities have been looking for him since that
time. He makes no claim to be an opposition activist and his behaviour since
his release is inconsistent with a reasonable fear of being imprisoned,
tortured or killed, or even of being wanted by the Indian authorities.
4.15 Although the author submitted medical reports to the Canadian
authorities, including one by an orthopaedist who noted injuries that were
not inconsistent with the allegations of torture, the injuries did not
substantiate the medical reports since the reports were based on information
supplied by the author himself, whom the authorities do not find credible.
4.16 In the light of the foregoing, the State party argues that the author
has not established prima facie grounds for believing that returning him to
India would expose him to a personal risk of torture and that the
communication should therefore be declared inadmissible.
Author's Comments
5.1 As regards the State party's objection that domestic remedies have not
been exhausted, the author states that, as far as immigration is concerned,
all remedies in the Federal Court are in practice illusory, since they are
discretionary and only very rarely granted. The Federal Court rarely
intervenes in matters of fact such as the author's case. All the case law
shows that the Federal Court has consistently exercised judicial restraint
in such cases.
5.2 Given that the Federal Court almost never intervenes and that when it
does it upholds 98 per cent of the Immigration and Refugee Board's
decisions, including subsequent reviews (risk of return), it would be highly
unusual - not to say quite improbable - for the Court to intervene in the
author's case. Moreover, the fact that a case has been brought before the
Federal Court in no way prevents the Canadian authorities from expelling
someone, and this is in fact common practice. And since the authorities have
already issued an arrest warrant, the author can be arrested at any time and
sent back to India without further ado.
5.3 In its comments, the State party states that the author neglected his
appeal options (judicial review). In fact, the remedy exists only on paper
since, in practice, it hardly ever affords the relief sought.
5.4 The State party also criticizes the author for not applying for
ministerial dispensation on humanitarian grounds. Such applications are,
however, subject to a fee. Moreover, as the author had an expulsion order
hanging over him, the application would have afforded him no protection.
5.5 The same comments apply to the application under what is known as the
risk of return programme. The mechanisms established by Canada under the
risk of return programme are farcical, since less than 3 per cent of cases
are approved.
5.6 The author does not share the State party's opinion that the
communication does not establish substantial grounds for believing that he
would be in danger of being subjected to torture if he returned to India. He
emphasizes the importance of the results of the medical examinations, which
give every reason to believe that he has been subjected to torture in the
past. Under the circumstances, there is more than a risk that the author
would again be subjected to torture if he were obliged to return to India.
5.7 The author finds it paradoxical that over the last few years Canada has
allowed in a great many other applicants facing exactly the same problems as
those he describes. The only difference seems to be that the Board did not
consider him credible. This finding, if that is what it can be called,
relies to a very large extent on subjective judgement and does not take
proper account of the objective dangers the individual concerned may face.
5.8 Lastly, the author argues that the State party has never fulfilled its
obligations under the Convention. Domestic legislation does not embody the
main articles and remedies set forth in the Convention. No law has been
enacted to establish mechanisms to enable persons such as himself to address
the competent authorities in case of need. The Immigration and Refugee Board
has always argued that it is not competent to implement the Convention,
merely saying that that is the prerogative of the Minister for Employment
and Immigration. However, the Minister has never issued any guidelines or
amended immigration law to incorporate the Convention. It is therefore
impossible to say who is responsible for implementing the Convention or what
steps have been taken to ensure that Canada fulfils its obligation not to
deport a person who is in danger of being subjected to torture in his
country of origin.
Admissibility Considerations
6.1 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention. In the case under consideration the Committee
notes that the communication is not anonymous and that the same matter has
not been, and is not being examined under another procedure of international
investigation or settlement. It also notes that the communication is not an
abuse of the right of submission of such communications or incompatible with
the provisions of the Convention.
6.2 The State party contends that the author has not exhausted domestic
remedies. The Committee notes in this respect that the author tried the
following remedies:
- application for refugee status to the Immigration and Refugee Board
(rejected in February 1996);
- application for leave to seek a judicial review of the rejection (rejected
in June 1996);
- application before a post-claim determination officer of the Ministry of
Citizenship and Immigration (rejected on 23 September 1996);
- two applications for leave to seek a judicial review of the decision of
the "rejected claims review officer" to the Federal Court (the first one was
withdrawn and the second one was rejected in January 1997 for not having
been submitted on time);
- application for "ministerial dispensation on humanitarian grounds" (denied
as unfounded).
6.3 The State party claims that the author should have completed his
application for judicial review of the decision of the "post-claim
determination officer" and that he could still try to apply for judicial
review of the denial of ministerial dispensation on humanitarian grounds.
The Committee considers that even if the author claims that these remedies
are illusory, he has furnished no evidence that they would be unreasonably
prolonged or unlikely to bring effective relief. The Committee therefore
notes that the conditions laid down in article 22, paragraph 5 (b), of the
Convention have not been met.
The Committee consequently decides:
(a) That the communication is inadmissible;
(b) That this decision may be reviewed under rule 109 of the Committee's
rules of procedure upon receipt of a request by or on behalf of the author
containing information to the effect that the reasons for inadmissibility no
longer apply;
(c) That this decision shall be communicated to the State party, the author
and his representative.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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