United Nations Human Rights Website - Treaty Bodies Database - Document - Jurispr... Page 5 of 15 evidence that he had sought legal aid or that legal aid had been denied. 4.15 Secondly, the author did apply for leave for judicial review with respect to the Minister's opinion that it would be contrary to the public interest to allow the author's refugee claim to be heard. However, the author failed to perfect this application by filing an application record within the prescribed period. As a result, the author's application was dismissed. If the author had filed an application record and leave had been granted, the Minister's opinion would have been scrutinized by the Federal Court Trial Division. If the application had been successful the Court would have returned the matter to the Minister for a decision in accordance with the reasons of the Court. Counsel's comments 5.1 In a submission of 20 January 1998 counsel claimed that the State party, in its response of 29 December 1997, failed to indicate how the Canadian authorities arrived at their conclusion regarding the risk facing the author. The author was never afforded an opportunity to have his refugee claim heard, nor was he ever afforded the benefit of an oral hearing before an independent tribunal where he could give his personal testimony concerning his fears. The only opportunity that the author had to provide documentation regarding the risk he faced was when the Minister of Immigration was requested to render an opinion as to whether it would be contrary to the public interest to allow the author to proceed with his refugee claim. Once that documentation had been provided, the entire decision-making process was conducted by the immigration officials. Counsel was not even advised of what other materials the authorities would be considering; consequently, he never had an opportunity to comment upon or respond to all materials that might have been before the Minister. 5.2 Counsel refers to the memorandum to the Minister which she purportedly relied upon in rendering her decision that it would be contrary to the public interest to allow the author to proceed with his refugee claim. According to counsel, the memorandum was evidence that there was absolutely no analysis of the particular risk facing the author in India given his past and current profile. It mainly focused on the author's past history and Canada's international obligations regarding the treatment of so-called terrorists; however, there was little reference to Canada's numerous international obligations under human rights treaties, including the 1951 Convention relating to the Status of Refugees. 5.3 Counsel also provided an affidavit by the author's niece who was in India when the author arrived from Canada. She states that upon his arrival, the author was subjected to interrogation for about six hours and that he was verbally threatened by officers from the Central Bureau of Investigation. She expressed concern that he would eventually be subjected to torture or extrajudicial execution. Further information submitted to the Committee by the niece indicates that the intimidation of the author and his family by the police has continued and that the author has informed the Human Rights Commission of Punjab about it. 5.4 With respect to the admissibility of the communication, counsel argues, in a submission of 11 June 1998, that at the time the decision of the adjudicator was rendered, it was not absolutely necessary for the author to seek leave for judicial review in order for him to be able to proceed with a refugee claim. The cost of the legal proceedings was only one factor, which guided the author's decision not to seek review. His main interest was to avoid any further delays in proceeding with his refugee claim. He had been in Canada for almost two years and was anxious to present his refugee claim to the Canadian authorities. He did not wish to delay this process by launching another judicial review. Secondly, there was little likelihood of success at any judicial review. 5.5 The State party stated that if it had determined that the petitioner did not fall within an inadmissible category, there would be no basis for excluding him from the refugee determination process and he would not have been removed pending consideration of his refugee claim. This statement is extremely misleading. In fact, the finding of the adjudicator http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/cfeacf290af5c026c125693d0038... 26.02.2008