CCPR/C/125/D/2238/2013
particular, the authors refer to the fact that: (a) the Federal Court refused to hear their
motion for a stay of deportation for “flimsy” reasons, depriving them of a fair trial; and (b)
their second pre-removal risk assessment application was denied on procedural grounds.
State party’s observations
4.1
In its observations dated 17 May 2013, the State party informed the Committee that
M.K. did not possess a valid travel document because her passport had expired and that
Canada was working with the Indian authorities to obtain a travel document for her, as she
was subject to a valid removal order.
4.2
The State party submits that an interim measures request is not appropriate in this
case. It argues that the alleged risks of torture or severe mistreatment against the authors are
related to a family dispute over their marriage.
4.3
The State party further argues that Canadian domestic decision makers assessed the
authors’ risk of torture and cruel treatment if returned to India and concluded that the
authors had a reasonable internal flight alternative, allowing them to live in other parts of
India, outside of the Punjab.7 It adds that there is no evidence in the present communication
that refutes the availability of an internal flight alternative for the authors. Canada also
states that individuals must seek to minimize their risk of harm, where possible, through
internal relocation or resettlement within their own State and submits that this is a wellestablished principle in international refugee law, supported by the views of international
human rights treaty bodies. 8 The State party argues that it is reasonable to expect the
authors to relocate to another part of India, where they will not be at risk of interference or
harm by family members who do not agree with their life choices. It adds that neither of the
authors is a high-profile or politically engaged individual who would be of interest to the
police or other authorities of the State throughout India. There is also no evidence that
members of their families or M.K.’s former in-laws could gain the assistance of the police
or other State authorities throughout the entire country. The State party submits that any
risk they might face is purely local or, at most, a risk confined to the Punjab region.
4.4
Regarding the new evidence submitted by the authors in their second pre-removal
risk assessment application, in October 2012, the State party contends that the second
application has not been yet considered owing to recent amendments to the Immigration
and Refugee Protection Act. One of these amendments imposes a 12-month ineligibility
period for the submission of pre-removal risk assessment applications for claimants whose
claims have been rejected. The State party submits that the purpose of this amendment is to
streamline the asylum system by eliminating the duplication and repetition of risk
assessments within an appropriate time frame and to deter unfounded claims by claimants
seeking to delay their removal from Canada. The authors’ 12-month pre-removal risk
assessment ineligibility period expired on 5 April 2013. Therefore, considering the
availability of a further risk assessment for the authors under domestic procedures, the State
party claims that it is not appropriate to comment at the present time on the new evidence
attached to the communication, as it has not yet been considered by a pre-removal risk
assessment officer. The State party notes that if the authors do not submit a second preremoval risk assessment application within a reasonable time, the present communication
should be deemed inadmissible, given that the authors would not have exhausted all
available domestic remedies. It further notes that their communication is, at least in part,
based on new evidence and the authors have not yet had this evidence assessed by a
domestic decision maker.
4.5
In its observations dated 28 May 2013, the State party informed the Committee that
it had obtained a valid travel document for M.K. and requested the lifting of the interim
measures. It also informed the Committee that, on 9 May 2013, the authors had applied for
a second pre-removal risk assessment, which would be considered in due course by
7
8
4
The State party refers to the decision of the Immigration and Refugee Board dated 11 April 2011 and
to the pre-removal risk assessment decision dated 5 April 2012, both provided by the authors in their
initial submission.
The State party refers to Committee against Torture, S.S.S. v. Canada (CAT/C/35/D/245/2004), para.
8.5, and B.S.S. v. Canada (CAT/C/32/D/183/2001), para. 11.5.