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refused and that there is a pattern of systematic violations of fundamental rights in this
procedure". In particular, counsel submits that the risk assessment is done by immigration
agents without any competence in matters of international human rights or legal matters, and
that the decision makers do not meet the criteria of impartiality, independence and recognized
competence.
State party’s observations on admissibility
4.1 By Note Verbale of 26 August 2004, the State party contests the admissibility of the
communication. It states that the complainant has failed to substantiate on a prima facie basis
that there are substantial grounds to believe that he personally faces a risk of torture on return
to India, contrary to article 3 of the Convention. It adds that the complainant has failed to
substantiate on a prima facie basis that the alleged aggravation of the complainant’s health on
deportation would amount to cruel, inhuman or degrading treatment for purposes of article 16
of the Convention. Further, the State party submits on the same grounds that there is no merit
to the communication.
4.2 On the issue of exhaustion of domestic remedies, the State party does not challenge in
principle that the complainant failed to exhaust domestic remedies, except in relation to the
new allegation of bias by a member of the IRB. The complainant failed to exercise due
diligence in raising this claim in domestic proceedings, and therefore this bias allegation is
inadmissible for failure to exhaust domestic remedies. The State party refers to previous
decisions of the Committee 2 where it was found that the complainant had failed to
substantiate his claim of bias because he did not raise any objections on those grounds until
after his application for refugee status had been dismissed.
4.3 The State party clarifies that the complainant’s case was heard under the procedure of
the former Immigration Act and thus the final decision was determined unanimously by a
panel of two members of the IRB, and not by one member, as implied by the complainant.
Subsidiarily, the allegations are unfounded, as they are not supported by any evidence. The
negative decision of the IRB was based on the complainant’s failure to present credible
evidence and on several inconsistencies in his testimony.
4.4 As to the allegations that the procedures in Canada are not effective remedies, the State
party submits that the PDRCC, PRRA and humanitarian and compassionate review processes
do constitute proper risk assessments. It recalls that the Committee previously found 3 that the
PDRCC and humanitarian and compassionate review processes constitute effective remedies,
and that the same reasoning should apply to the PRRA. The State party adds that the
complainant does not submit any evidence to support his claims to the contrary.
2
The State party refers to Communication 603/1994 Andres Badu v. Canada, Views adopted
on 12 August 1997; Communication 604/1994 Nartey v. Canada, Views adopted on 12
August 1997; Communication 24/1995 A.E. v. Switzerland, Views adopted on 8 May 1995
and Communication 654/1995 Kwane Williams Adu v. Canada, Views adopted on 12 August
1997 regarding failure to exhaust domestic remedies.
3
The State party refers to Communication 95/1997 L.O. v. Canada, Views adopted on 5
September 2000; Communication 86/1997 P.S. v. Canada, Views adopted on 16 June 2000;
Communication 66/1997 P.S.S. v. Canada, Views adopted on 13 November 1998;
Communication 42/1996 R.K. v. Canada, Views adopted on 20 November 1997.