CAT/C/55/D/505/2012
and easily obtainable in India and that they were not able to explain clearly how they
obtained such documentation. The authorities also stated that Akali Dal, the first
complainant’s party, was legal in India and that, even if the complainants’ claims had been
deemed credible, they had alternatives for relocation inside India.
2.7
The complainants filed an application for judicial review of the IRB decision. On 31
August 2011, the Federal Court dismissed the application for leave and judicial review.
They filed an application for pre-removal risk assessment (PRRA). On 12 March 2012, that
application was dismissed. The PRRA officer considered that the complainants did not
provide new evidence (other than the documentation submitted to the IRB) that would meet
section 113 (a) of the Immigration and Refugee Protection Act and that the assessment of
the evidence did not show they would be at risk if returned to India. On 13 March 2012, the
complainants also filed an application for residence on humanitarian and compassionate
grounds. In April 2012, the application was dismissed. On 15 May 2012, the Federal Court
dismissed the motion for a stay of execution of their removal order, scheduled for 18 May
2012.
2.8
The complainants argue at length that the PRRA is not an effective remedy in
Canada. They submit that the main evidence of the risk of torture or other human rights
violations is not examined by the decision maker; that the PRRA officers appear to
slavishly follow whatever decision was rendered at the IRB and not to exercise any
independent judgement; that there is political line of refusal of many Sikh torture victims
from India, and generally a lack of access to a valid legal recourse in Canada. They also
claim that the Federal Court’s decisions in this case illustrates the lack of access to an
effective remedy, since the Court rejected their application on the basis that they were
alleging the same risks as they did before the IRB.
The complaint
3.1
The complainants argue that the denial of refugee status by the State party and their
potential deportation, together with the circumstances surrounding their situation in Punjab
before their departure from India, put them at risk of torture or cruel or other inhuman or
degrading treatment in violation of article 3 of the Convention. They maintain that the
Canadian authorities did not assess adequately the risk they would be subject to if returned
to India. They also maintain that the authorities arbitrarily failed to consider the weight of
documentation provided in support of their request, including two reports from the Khalra
Mission Committee and from Brijinder Singh Sodhi of the Sikh Human Rights Group that
detailed the current danger they may face in India, without even providing an explanation
of why the reports were not taken into consideration.
3.2
The complainants also maintain that the authorities failed to take into account the
factual, historical context of human rights abuses against active Sikhs and the culture of
impunity within the Punjab Police. For instance, in 1993, a young lawyer, his wife and 2year-old child were abducted by the police and murdered because the lawyer had
represented suspected militants before the courts. Similar cases have taken place since then;
in 1999, a commission was created to receive and investigate such cases. In June 2005, the
Head of Akali Dal made a declaration in favour of the independence of Punjab and
subsequently was detained and tortured severely for several weeks. Moreover, prominent
non-governmental organizations, such as Amnesty International and Human Rights Watch,
have raised questions regarding the human rights record of India in Punjab.
State party’s observations
4.1
On 16 November 2012, the State party submits that the complainants are Indian
citizens who arrived in its territory on 14 July 2009. The complainants applied for refugee
protection on 17 July 2009, alleging that they were at risk of torture, persecution, and/or
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