A/HRC/13/39/Add.5 between the non-refoulement and asylum procedures and in practice, the risk of refoulement is usually examined in regular domestic asylum procedures, which in many countries display shortcomings. The respect of the principle of non-refoulement is difficult in practice since it requires adequate procedures for the assessment of an objective and subjective risk of torture. For the non-refoulement principle to be effective, it must be emphasized that the applicant only has the burden of showing the risk of torture, while the burden of proof is carried by the State throughout the procedure. The State has to undertake a proper risk assessment by collecting relevant information and evidence. While doubts about the credibility of the facts provided by the applicant can result in the refusal of asylum, the State has to ensure that the security of the applicant is not endangered, as continuously held by the CAT Committee.191 In this regard, I am concerned with the increased tightening of immigration laws and speeding up of procedures that often only provide for a superficial collection of evidence by the domestic authorities. Despite great immigration pressures or xenophobic tendencies among the population, States have to take their obligations to protect people fleeing from torture seriously. B. Challenges in the “war against terror” 240. As elaborated earlier, the principle of non-refoulement is absolute. Nevertheless, some States have claimed that it is necessary to deport dangerous individuals in order to protect their communities from terrorist threats. In this regard a test of reasonableness for terrorist suspects, balancing the risk of torture against the threat to national security, has been applied. Such approach was for example supported by the Canadian Supreme Court in the 2002 Suresh judgment, whereby it accepted that refoulement could occur in exceptional circumstances if a substantial risk to the national security of the State was proven.192 The CAT Committee has rejected this approach and confirmed the absolute nature of article 3 on numerous occasions.193 It has stated that “The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.”194 Similarly, the European Court of Human Rights has discarded any ‘balancing act’. While recognizing the danger of terrorism and the “immense difficulties” for States to protect their communities, it has stated that this “must not, however, call into question the absolute nature of Article 3”.195 241. Some States have argued for a geographical limitation of the principle of nonrefoulement. States maintaining detention facilities outside their territories, such as the United Kingdom and the United States in Iraq or Afghanistan, have claimed that the nonrefoulement principle was not applicable to the detainees held there but restricted to their own territories. Thus, they transferred detainees to the domestic authorities of Iraq or Afghanistan without assessing any risk of torture. Such practice may have dangerous consequences for the returned individuals who are often suspected terrorists or fundamentalists and consequently run a particularly high risk of being tortured or ill-treated upon return. Such attempts to limit the principle of non-refoulement to State territories are 191 192 193 194 195 CAT Committee, Aemei v. Switzerland, No. 34/1995, para. 9.6; A.S. v. Sweden, No. 149/1999, para. 8.6; Nos. 13/1993, para. 9.2; 15/1994, para. 12.3; 34/1995, para. 9.6; 138/1999, para 7.3. For a detailed analysis of the practice of the CAT Committee see Nowak and McArthur, Article 3, 3. Supreme Court of Canada, Manickavasagam Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1. File No.: 27790. CAT/C/18/D/39/1996, para. 14.5; CAT/C/SR.652, para. 59; CAT/C/NPL/CO/2, para. 17; CAT/C/FRA/CO/3, para. 6. CAT Committee, Tapia Paez v. Sweden, CAT/C/18/D/39/1996, 28 April 1997, para. 14.5. ECtHR, Saadi v. Italy, Appl. No. 37201/06, 28 February 2008, para. 137. 65