CAT/C/55/D/505/2012
extrajudicial execution by police in Punjab, India, owing to the first complainant’s
leadership role within his local Sikh community in Punjab, and the belief of certain
authorities that the complainants have family or associational connections with Sikh
militants.
4.2
In April 2011, the Refugee Protection Division (RPD) of the Immigration and
Refugee Board of the State party determined that the complainants were neither refugees
nor persons in need of protection. The RPD concluded that the complainants were not
personally credible in their claims, that they had provided insufficient objective evidence to
support their claims and that they had an internal flight alternative in India. The Federal
Court dismissed the complainants’ application to commence a judicial review of the
rejection of their application for refugee status in August 2011.
4.3
In March 2012, during the complainants’ PRRA, it was determined that they were
not in need of protection from removal to India. During the PRRA, it was found that the
complainants had not established that there were substantial grounds to believe that they
would be at risk of torture or cruel, inhuman or degrading treatment if returned to India.
The Federal Court dismissed the complainants’ application to commence a judicial review
of the negative PRRA determination in September 2012. The complainants’ application for
permanent residence on the basis of humanitarian and compassionate grounds was also
rejected in March 2012. The Federal Court dismissed the complainants’ application for a
judicial review of the rejection of the application on humanitarian and compassionate
grounds in September 2012. The complainants were scheduled to leave the State party on
18 May 2012, before the State party received the Committee’s request for interim measures
and cancelled the deportation.
4.4
The State party submits that the Committee is only competent to consider
communications that provide sufficient evidence to substantiate violations of rights
protected by the Convention. The evidence will only be sufficient if it substantiates the
complainants’ claims on at least a prima facie basis. 4 In other words, the evidence provided
by the complainants must meet a “basic level of substantiation”. 5 In its general comment
No. 1 (1997) on implementation article 3 of the Convention in the context of article 22, the
Committee stated that it is the complainant’s responsibility to establish a prima facie case
for the purpose of admissibility of his or her communication, by fulfilling each of the
requirements for admissibility in the Committee’s rules of procedure. The State party
submits that the complainants have not sufficiently substantiated their allegations with
respect to article 3 of the Convention and, accordingly, the Committee should declare this
communication inadmissible pursuant to rule 113 (b) of its rules of procedure, because it is
manifestly unfounded.
4.5
The State party further submits that the complainants have an internal flight
alternative in India. They have consistently stated that they have never been involved in
political activities; they have never been high-profile Sikh militants; they flew out of New
Delhi in 2009 using their own names and their own passports; the first complainant’s
activities on behalf of his local gurdwara appear to have ceased when he left India. More
than three years later, it seems highly unlikely that any risk that might once have existed for
the complainants in their village as a result of those activities would still exist there.
Furthermore, given the nature of the difficulties faced by the complainants, it is highly
unlikely that any risk to the complainants would exist outside of the complainants’ village,
4
5
See communications No. 243/2004, S.A. v. Sweden, decision of 6 May 2004, para. 4.3, and No.
225/2003, R.S. v. Denmark, decision of 19 May 2004, para. 6.2.
See communications No. 242/2003, R.T-N. v. Switzerland, decision of 3 June 2011, paras. 6.2, 7.1 and
7.2, and No. 18/1994, Y. v. Switzerland, decision of 21 May 2013, para. 4.2.
5