author’s life, such as his sports career. The State party states that the
medical evidence was considered in the post-claim risk-assessment, but that the
author’s failure to produce medical evidence in proceedings before the Canadian
tribunals deprived them of the opportunity to test this evidence. The State
party argues that there was no reason why the author could not have advanced
this evidence in previous proceedings of competent tribunals and submits that
the issue was directly relevant to the determination made by the Refugee
Division. It is argued that the generally applicable principles relating to the
reception of new evidence militate strongly against the Committee accepting it
now as a basis for overriding the prior findings of the Canadian tribunals.
8.6 The State party contends that the available evidence does not support the
author’s claim that he personally is sought after by the Pakistani authorities.
The State party submits that the author’s secessionist activities are pursued by
thousands of others in his region with the support of Pakistan. It is moreover
argued that there is no evidence that the Baltistan Student Federation, of which
the author allegedly is a leader, is the target of Pakistani repression. The
State party further points out that, although the author alleges that there is
an outstanding warrant for his arrest, he does not identify the charge or
actions on which that warrant is based. The State party moreover indicates that
the author’s family continues to live in Pakistan unharmed and without
harassment.
8.7 In this context, the State party submits that article 3 of the Convention
should not be interpreted to offer protection to persons who voluntarily place
themselves at risk. "In other words, Mr. Khan should not be able to invoke
article 3 on the basis that he might again participate in the activities of a
militant organization and be subject to the risks associated with the violent
activities such organizations use and in turn, face. [...] The important point
is that currently Mr. Khan does not attract any particular attention in Pakistan
and his return by Canada would not pose a risk."
8.8 In conclusion, the State party submits that the evidence presented by the
author is insufficient to demonstrate that the risk of being tortured is a
"foreseeable and necessary" consequence of his return to Pakistan. In this
context, the State party submits that the supporting affidavit by a lawyer from
Pakistan was from a member of JKLF, itself a terrorist organization with a
particular interpretation of the Kashmiri situation. No sufficient evidence has
been submitted which shows that the author’s BSF activities render him a target
of the Pakistani authorities. On the contrary, the documentation available
suggests that the author’s militant activities were in fact common in the north
of Pakistan and supported by the Government.
Counsel’s comments and State party’s clarification:
9.1 In his comments, dated 26 October 1994, on the State party’s submission,
counsel claims that it is clear that the real circumstances of the author’s case
have never been fairly examined by the State party. He refers to the
documentation submitted to the Committee, among which information indicating
that already eight activists for Kashmir independence had been killed by
Pakistani supporters and that a bomb attack had taken place against one of the
JKLF leaders, and claims that there is a great deal of documentary evidence of
repression against those who want independence for Kashmir. He also refers to
the earlier submitted affidavit by a Kashmir human rights lawyer, at present a
refugee claimant in Canada, who corroborates the author’s story.
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