4.8
With respect to the risk assessment by the Canadian immigration authorities, the State
party submits that immigration officers are specially trained to assess the situation in the country
of origin of refugee claimants and to apply domestic Canadian as well as human rights law
including the Convention against Torture. The State party considers the remedy of judicial
review an adequate safeguard for the immigration officers’ “relative lack of independence”.
4.9
Lastly, the State party argues that the Committee should not substitute its own finding
on whether there were substantial grounds for believing that the complainant would be at risk
of being tortured if returned to India, since the national proceedings before the immigration
and Refugee Board, as well as the Federal Court, do not disclose a manifest error or
unreasonableness or any other irregularity, the evaluation of facts and evidence being a matter
reserved to the national courts.
Complainant’s comments
5.1
In his comments dated 30 March 2002 on the State party’s submission, the complainant
reiterates that he would run a risk of being tortured, or even executed, if he were to be returned to
India. He submits that some of the evidence supplied by the complainant was entirely ignored or
belittled in the State party’s submission, such as the investigation report by Mr. S.S., several
newspaper articles and the Chahal judgement of the European Court of Human Rights, while
other documents, in particular the arrest warrant and the article from the Vancouver weekly
which explicitly mentioned the complainant, were not recognized as being authentic. Since all
documents had been submitted in original to the Canadian authorities, it would have been easy
for the State party to verify their authenticity.
5.2
The complainant submits that the State party seeks to undermine his credibility
on secondary grounds, such as his delay in making a refugee claim, his failure to claim
refugee status in the United States, the fact that he was issued a passport by the Indian
consulate in New York, and the date of his arrest warrant, which are insufficient to refute the
well-documented risk of torture in this case. Counsel submits that the complainant, in order
to obtain a document to prove his identity, paid $500 to a Mr. S. to collect his passport at the
Indian consulate in New York. With regard to the date of the arrest warrant, the complainant
states that he does not know why it had been issued two years after his departure from India and
that a possible explanation may lie in events in the Punjab of which he is not aware.
5.3
With respect to the medical and psychological reports, the complainant submits that these
documents clearly establish he had been tortured, a fact which has never been seriously denied
by the State party. The complainant denies the State party’s allegation that the reports were only
presented at a late stage of the proceedings, explaining that at least the 1995 medical report had
been supplied to the Canadian authorities at an earlier stage.
5.4
As further evidence, the complainant submits an affidavit by Mr. S.S.S., a friend and
former officer of the Indian army who, subsequent to his dismissal from the army, became a Sikh
activist, fled the country and was granted Convention refugee status in Canada in 1993. In the
affidavit, he states that he met the complainant’s family several times during a four-month visit
to India in 1997 when he was told that the Punjabi police continued to harass the family and
suspected the complainant of having contacts with terrorists abroad.
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