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that this minimal risk needed to be weighed against the impact of Canada providing refuge to an
individual who had been convicted of hijacking, a terrorist act. On 8 December 1997 the
Minister rendered her opinion that it would be contrary to the public interest to have the author's
refugee claim heard.
4.8 On 18 December 1997 the author applied for leave for judicial review of the Minister's
decision. He also applied for an interim order staying the execution of the deportation order. On
the same day the Government of Canada became aware, through a conversation with the
author's counsel, that the author had filed a communication in September 1997 with the
Committee and that the Committee had requested on 18 December 1997 that the author not be
expelled pending its consideration of the communication. The Committee's letter informing the
State party of the author's communication and the request for interim measures was received on
19 December 1997.
4.9 On 22 December 1997 the Federal Court Trial Division dismissed the author's application
regarding the deportation order. The Court emphasized that the author would be excluded from
Convention refugee status owing to his past terrorist activities and that Canada should not be
nor be seen to be a haven for terrorists. It noted that the author had had ample opportunity to
suggest another country of removal than India, that India did not have a policy of or encourage
police brutality, and that the author's high profile would provide him with protection against any
alleged possible ill-treatment by Indian authorities.
4.10 On 23 December 1997 the Court issued a supplementary decision with respect to the
author's request that the Court certify the question whether a person's rights under the Canadian
Charter of Rights and Freedoms are infringed in case of removal to a country where there is a
reasonable possibility that the individual would be subjected to torture, pursuant to an opinion
by the Minister that it would be contrary to the public interest to have the individual's refugee
claim heard. The Court determined that the author's question should not be certified. In
rendering its decision the Court found that the author had not shown that it would be
demonstrably probable that he would face torture upon return to India.
4.11 On 23 December 1997 the author was removed from Canada. He was escorted to New
Delhi by one CIC officer and one police officer. Upon arrival the author was dealt with in a
normal fashion and was not treated by the Indian police any differently from other individuals
removed to India.
4.12 On 9 March 1998 the author's application for leave for judicial review of the Minister's
opinion concerning his refugee claim was dismissed by the Federal Court Trial Division for
failure of the author to file an application record within the prescribed period.
4.13 The State party argues that the communication before the Committee is inadmissible for
failure to exhaust domestic remedies. First of all, the author did not seek leave for judicial
review of the 30 May 1997 decision of the adjudicator that he was inadmissible on the basis of
terrorism and criminality under the Immigration Act. If leave had been sought and granted, that
decision would have been reviewed by the Federal Court Trial Division. A successful review
application would have resulted in an order that a new inquiry be held and a decision rendered
consistent with the reasons of the Court. If it was determined that the petitioner did not fall
within an inadmissible category, there would be no basis for excluding him from the refugee
determination process and he would not have been removed from Canada pending consideration
of his refugee claim. Moreover, the author could have sought an extension of the time required
for the filing of the application for leave for judicial review. Such extensions are frequently
granted and would have allowed the author to file a late application.
4.14 The author alleges that he did not appeal or seek judicial review for lack of funds. In fact,
there is no charge for submitting an application for leave for judicial review and it is a
comparatively inexpensive procedure. The author clearly found the financial means to retain
counsel - or his counsel had acted pro bono - with respect to several previous and subsequent
proceedings, including proceedings before the Committee. The author has not provided any
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