United Nations Human Rights Website - Treaty Bodies Database - Document - Jurispr... Page 3 of 15
could be extradited, he believes that the Indian Government's interest in having him returned is
for purely extrajudicial reasons.
State party's observations on admissibility
4.1 On 18 December 1997 the Committee, acting through its Special Rapporteur for new
communications, transmitted the communication to the State party for comments and requested
the State party not to expel or deport the author to India while his communication was under
consideration by the Committee. On 29 December 1997 the State party informed the Committee
that the author had been removed from Canada to India on 23 December 1997. In reaching that
decision the authorities had concluded that there were no substantial grounds for believing that
the author would be in danger of being subjected to torture in India.
4.2 In a further submission dated 11 May 1998 the State party refers to the inquiries undertaken
by the Canadian authorities. The author's refugee application was referred by a Senior
Immigration Officer to the Convention Refugee Determination Division of the Canadian
Immigration and Refugee Board on 26 May 1995. During his first interview with immigration
officers the author used a false name and stated that he had never committed nor been convicted
of a crime or offence. He based his refugee claim on religious persecution and cited one
incident of mistreatment by the Indian police.
4.3 Subsequently, the Department of Citizenship and Immigration Canada (CIC) discovered his
true identity and a report was issued stating that the author was suspected of belonging to a
category considered inadmissible under the Immigration Act because he had engaged in acts of
terrorism. On 21 September 1995 he was arrested. When interviewed by a CIC Immigration
Investigator and two officers of the Canadian Security Intelligence Service (CSIS), he
acknowledged that he was an active member of the Dal Khalsa terrorist group and had
participated in the hijacking of the Indian Airlines flight. The State party also mentions that in
an article dated 19 October 1994 published in the Pakistani press the author had pledged to
continue the struggle for Khalistan.
4.4 In November 1995 another report was issued stating that the author belonged to another
inadmissible category, namely persons for who there are reasonable grounds to believe had been
convicted outside Canada of an offence that, if committed in Canada, would constitute an
offence punishable by a term of at least 10 years' imprisonment. As a result of the two reports
an adjudicator conducted an inquiry and concluded that the author had in fact been convicted of
an offence that, if committed in Canada, would be punishable by a term of at least 10 years'
imprisonment.
4.5 The author applied for leave for judicial review of this decision. The Government of Canada
consented to his application after it was determined that the adjudicator had erred in the process
of determining that the author was inadmissible. The Federal Court Trial Division ordered that a
new inquiry be held. The adjudicator in charge of the second inquiry found, in a decision dated
30 May 1997, that the author was known for criminality and terrorism. As a result, a conditional
deportation order was issued. The author did not seek leave for judicial review of this decision.
4.6 By letter dated 5 June 1997 the author was informed that CIC intended to request an opinion
from the Minister of Citizenship and Immigration to the effect that it would be contrary to the
public interest to have his refugee claim heard. The author was also apprised that as part of this
procedure the Minister would consider any humanitarian and compassionate circumstances
pertinent to his situation, including any possibility that he would be at risk should he be
removed to India. The author was required to present submissions to the Minister, which he did.
4.7 On 3 December 1997 CIC addressed a memorandum, to which the author's submissions
were attached, to the Minister, evaluating the risk of returning him to India in the light of the
documentary evidence of the human rights situation in India and the personal circumstances of
the author. It was concluded that the author might face a minimal risk upon return to India, but
http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/cfeacf290af5c026c125693d0038... 26.02.2008