if all the contradictions in his story were overlooked
and his evidence were regarded as credible, the fact
that he allegedly fears mistreatment by the police if
returned to India, and documentary evidence shows
that at the present time this type of abuse is only
directed against high profile militants. As the author
is not a high profile militant, he is not someone who
is likely to be targeted by the police.
well as the right to make a humanitarian and
compassionate application.
4.11 As to the author’s general claims relating to
the scope of judicial review by the Federal Court and
the PRRA procedures, the State party notes that it is
not within the scope of the Committee to evaluate
the Canadian system in general, but only to examine
whether in the present case Canada complied with its
obligations under the Covenant. In any event, there
are previous decisions of international tribunals,
including this Committee, which considered the
impugned processes to be effective remedies.6 While
the Committee against Torture recently questioned
whether the PRRA process could be effective in the
case of one complainant,7 due to its assumption that
the risk assessment would be limited to new
evidence in that case, in the current case, the PRRA
officer considered all of the submissions and
evidence presented by the author, including new
evidence as well as that previously submitted to the
Board, in her assessment of the risk he might face
upon return.
4.9 As to the claims under articles 2, 13 and 14,
the State party submits that these claims are
inadmissible on the grounds of incompatibility with
the provisions of the Covenant, pursuant to article 3
of the Optional Protocol. It invokes the Committee’s
jurisprudence to demonstrate that article 2 does not
recognize an independent right to a remedy but
arises only after a violation of a Covenant right has
been established. In the alternative, the Covenant
rights alleged to have been violated therein are rights
protected in the Canadian Charter of Rights and
Freedoms. It is argued that article 13 does not apply
to the author, as he was determined not to be at risk
in India, is subject to a lawful removal order and is
not thus “lawfully in the territory” in Canada. The
State party invokes the Committee’s general
comment 15 and its finding in Maroufidou v.
Sweden, 4 in which article 13 is considered to
regulate only the procedure and not the substantive
grounds for expulsion, and its purpose is to prevent
arbitrary expulsions. The author has not established
that the proceedings leading to the removal order
against him were not in accordance with lawful
procedures, or that the Canadian Government abused
its power.
4.12 If the Committee were to find the
communication admissible, the State party requests
the Committee to find the case without merit.
Author’s comments
5.1 On 20 March and 3 September 2005, the
author commented on the State party’s submission.
He sets out the historical situation in the Punjab from
the 1980s onwards in great detail to demonstrate that
the author would be at risk of torture if returned
there. On the alleged contradictions in his story, the
author submits that it is not unusual that his story
might resemble the stories of other Sikh truck
drivers, as there is a high number of Sikhs in the
trucking industry and many of them have been
detained and tortured for giving rides to militants, or
because of suspicion that they were carrying
4.10 The State party submits that refugee and
protection determination proceedings do not fall
within the scope of article 14. They are in the nature
of public law, the fairness of which is guaranteed by
article 13. 5 In the alternative, if the immigration
proceedings are considered to be the subject of
article 14, the State party argues that they satisfy the
guarantees contained therein. The author’s case was
heard by the Refugee Division of the Immigration
and Refugee Board, an independent tribunal. He
knew the case he had to meet, was represented by
counsel, and had a full opportunity to participate,
including testifying orally and making written
submissions. He had access to judicial review, as
6
Inter-American Commission on Human Rights,
Organization of American States, Report on the Situation
of Human Rights of Asylum Seekers within the Canadian
refugee determination system (2000). Human Rights
Committee Views: Abu v. Canada, communication
No. 654/1995, Views adopted on 18 July 1997; Badu v.
Canada, communication No. 603/1994, Views adopted on
18 July 1997, Nartey v. Canada, communication
No. 604/1994, Views adopted on 18 July 1997.
Committee against Torture decisions: P.S.S. v. Canada,
communication No. 66/1997, Views adopted on 13
November 1998; P.S. v. Canada, communication
No. 86/1997, Views adopted on 18 November 1999; R.K.
v. Canada, communication No. 42/1996, Views adopted
on 20 November 1997; L.O. v. Canada, communication
No. 95/1997, Views adopted on 19 May 2000; M.A. v.
Canada, communication No. 22/1995, Views adopted on 3
May 1995. European Court of Human Rights: Vilvarajah
and Others v. United Kingdom, 14 E.H.R.R- 218 (1991),
para. 126.
7
See Falcon Rios v. Canada, communication
No. 133/1999, Views adopted on 23 November 2004.
and his home village does not amount to torture within the
meaning of article 1 of the Convention.
4
Communication No. 58/1979, Views adopted on 9 April
1981.
5
In this regard, it refers to Y.L. v. Canada, communication
No. 112/1981 (1986), decision adopted on 8 April 1986,
V.M.R.B. v. Canada, communication No. 236/1987,
decision adopted on 18 July 1988, and Ahani v. Canada,
communication No. 1051/2002, Views adopted on 29
March 2004.
18
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