United Nations Human Rights Website - Treaty Bodies Database - Document - Jurispr... Page 8 of 15 9.2 The State party could not possibly have given serious consideration to the interim measures request, in view of the fact that after learning of the request on 18 December 1997 it continued to act single-mindedly to effect the author's removal by opposing an application for a stay of deportation pending a review of the Minister's finding that it would be contrary to the public interest to allow the author to proceed with his refugee claim. The State party chose to rely on its position that the Minister had already conducted a risk assessment with respect to the author and that nothing further was required. The author was not able to do anything but make preliminary written submissions. There was no oral hearing, no ability to call or cross-examine witnesses, no proper disclosure of "internal State documents", and so on. The State party justifies its actions on the basis that the Federal Court dismissed the author's application for a stay of removal. However, the Federal Court's finding with respect to the stay application was not subject to review. It is the finding of one judge, with whom the author disagrees. If the author had appeared before any number of other judges in the Federal Court the result of the stay application might have been different. The Committee's decision on admissibility 10.1 At its twenty-first session, the Committee considered the question of the admissibility of the communication and ascertained that the same matter had not been and was not being examined under another procedure of international investigation or settlement. With regard to the exhaustion of domestic remedies, the Committee noted that the author applied for an interim order staying the execution of the deportation order which was dismissed by the Federal Court Trial Division on 22 December 1997. As a result of a further request from the author the Court issued a supplementary decision according to which the author had not shown that it would be demonstrably probable that he would face torture upon return to India. The author also applied for leave for judicial review of the Minister's decision that it would be contrary to the public interest to have his refugee claim heard. However, the author was expelled before the deadline for perfecting the application. The Committee also noted that the author failed to seek leave for judicial review of the adjudicator's decision that he belonged to an inadmissible category. However, the Committee was not convinced that this remedy would have been an effective and necessary one, in view of the fact that the other remedies, mentioned above, were available and, indeed, utilized. 10.2 The Committee therefore decided that the communication was admissible. State party's observations on the merits 11.1 In its submission of 12 May 1998, the State party states that according to the principle laid down in the case Seid Mortesa Aemei v. Switzerland, (1) the Committee has to determine "whether there are substantial grounds for believing that [the author] would be in danger of being subjected to torture [in the country to which he is being returned]" and "whether he would be personally at risk". It also recalls that the burden of proof is on the part of the author to establish that there are substantial grounds to believe that he or she would be personally at risk of being subjected to torture. 11.2 The State party submits that since the protection provided by article 3 is, according to the Committee's jurisprudence, absolute, irrespective of the author's past conduct, the determination of risk must be particularly rigorous. To that purpose, reference is made to a decision of the European Court of Human Rights (Vilvarajah and others v. United Kingdom), where it is stated, with regard to article 3 of the European Convention on Human Rights, that "the Court's examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision". 11.3 In order to assess the risk of torture faced by the author, the State party contends that the following factors are pertinent: (a) whether the State concerned is one in which there is evidence of a consistent pattern of gross, flagrant or mass violation of human rights; (b) whether the author has been tortured or maltreated by or with the acquiescence of a public official in the past, (c) whether the situation referred to in (a) has changed; and (d) whether the author has http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/cfeacf290af5c026c125693d0038... 26.02.2008