Federal Court of Appeal, if the judge of the Trial Division certifies that the case raises a serious
question of general importance. The Appeal Court’s decision is subject to further appeal to the
Supreme Court of Canada. The applicant can apply to the Federal Court for an interim order
staying removal pending the outcome of his applications and appeals before that Court.
6.3
The State party contends that, like the PDRCC risk assessment in the former legislation,
the Pre-Removal Risk Assessment constitutes an effective remedy;j the same has been held by
the Committee against Torture and the Human Rights Committee with respect to the remedy of
judicial review.k
6.4
In addition, the State party rejects the complainant’s argument that the Federal Court
twice acknowledged his risk of being tortured upon return to India, arguing that the stay order
of 2 October 1998 and the decision of 24 November 1999 on one of his applications for judicial
review cannot be considered judicial findings of fact that the author would be at such a risk.
6.5
The State party challenges the documentary evidence produced by the author, on
the basis (a) that the affidavit of Mr. S.S.S., who was able to spend four months in the Punjab
in 1997 despite the fact that he had been granted refugee status in Canada, was merely based on
statements of the complainant’s family and friends in the Punjab and was as such self-serving
and of little weight; (b) that the reports and studies on past human rights violations in the Punjab
are insufficient to make out a personal and present risk of torture for the complainant, should he
be deported to India; and (c) that the two medical reports of 1995 only referred to previous
physical injuries, without making reference to post-traumatic stress disorder, which had been
mentioned for the first time in the 1999 report, five years after the complainant made his
refugee claim.
7.1
In comments dated 31 March 2003 the complainant reiterates that he would be at a
personal and present risk of torture in India, as confirmed by the Federal Court decisions
stating that he “would suffer irreparable harm” (staying order of 2 October 1998) or “endure
unusual, undeserved or disproportionate hardship” (judgement of 24 November 1999), if
returned to that country.
7.2
The complainant denies that Canada’s international human rights obligations are taken
into account in the PRRA decision-making process, as this procedure was designed to refuse
refugee status to “practically everybody”, the denial rate totalling between 97 and 98 per cent of
all applicants.
State party’s further submissions and counsel’s comments
8.1
On 19 February 2004, the State party informed the Committee that the complainant’s
PRRA had been concluded and requested it to lift its suspension of the consideration of the case,
to adopt a decision on the admissibility and merits of the complaint as expeditiously as possible
or, alternatively, to withdraw its request for interim measures, in accordance with rule 108,
paragraph 7, of its rules of procedure.
8.2
The State party argues that the evidence produced by the complainant does not support a
finding that, as a result of his removal, he would suffer “irreparable damage” within the meaning
of rule 108, paragraph 1, of the rules of procedure, given his low personal profile, the fact that
his alleged torture occurred more than 12 years ago, and that the human rights situation in the
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