CCPR/C/125/D/2948/2017
1.1
The authors of the communication, which was received on 31 January 2017, are Mr.
H.S., born in 1978, and Ms. A.K., born in 1984. They are both Indian nationals. The
authors are acting on their own behalf and on behalf of their minor children, J.S., born in
2009, and R.K., born in 2010, both of whom are Canadian citizens. The parents have been
refused asylum in Canada and ordered to leave the country. Their return to India was
scheduled for 19 February 2017. They claim that Canada would be violating its obligations
under articles 2, 6, 7, 9, 10, 17, 23, 24 and 26 of the Covenant if it were to return the adult
authors to India. The Optional Protocol to the Covenant entered into force for the State
party on 19 May 1976. The authors are represented by counsel, Alain Vallières.
1.2
On 7 February 2017, the Human Rights Committee requested Canada to stay the
removal of the adult authors while their complaint was examined. Canada granted this
request and the authors remain in Canada for the moment. On 4 August 2017, the State
party requested that the interim measures regarding this communication be lifted. On 19
December 2017, the Committee, acting through its Special Rapporteur on new
communications and interim measures, rejected the request.
The facts as submitted by the authors
2.1
From 1997 to 1999, Mr. H.S. worked in Malaysia. In 1999, he returned to India to
replace his lost passport. In January 2000, the police came to the family home to question
him about political activists and his alleged role as a mediator between Indian and Pakistani
activists. On that occasion, he was tortured to extract information from him and had to pay
a bribe in order to be released.
2.2
Having taken refuge in his sister’s home, which was in another location, he was
informed that he was still wanted by the police. He therefore decided to flee to Malaysia on
a fake passport. His family, who had stayed in India, continued to be harassed by the police
until a bribe was paid in 2005.
2.3
In 2006, Mr. H.S. returned to India to marry Ms. A.K. During his stay in India, he
tried to recover a debt from a man, R.S. In that context, he questioned R.S.’s father, who
died a few days later. The brother of R.S. held the author responsible for the death of his
father and retaliated by reporting Mr. H.S. to the Indian authorities as a people smuggler
with a false passport.
2.4
Mr. H.S. was arrested on 27 October 2006 and was questioned again about his
political affiliations while he was detained. He was released on 9 December 2006 and
returned to Malaysia. His wife joined him in July 2007 but had to return to India in March
2008 for medical treatment. Having failed to appear before the court in India in connection
with the events that had led to his arrest, he was declared a “proclaimed offender” and was
sought by the police. His wife received threats.
2.5
Later, Mr. H.S.’s brother was arrested and tortured because of his links with the
former, and has been missing since 2010.
2.6
On 9 November 2008, the authors arrived in Toronto, Canada, and applied for
asylum.
2.7
On 10 June 2013, 28 April 2014 and 24 November 2014, the authors were heard by
the Immigration and Refugee Board of Canada. Their application was rejected on 23
January 2015. On 9 February 2016, they applied for a pre-removal risk assessment; their
application was rejected on 4 August 2016. They subsequently received an order to leave
Canada.
2.8
On 13 October 2016, the authors applied for permanent residence on humanitarian
and compassionate grounds, including in connection with the best interests of their children,
who are both Canadian citizens. They had not received a response at the time of the initial
submission of the communication, as the standard response time ranges from 30 to 42
months. This procedure does not prevent their deportation, however.
2.9
The authors state that although they were entitled to apply to the Federal Court of
Canada for a judicial review of the decisions to reject their asylum application, their
counsel at the time had advised them not to do so. The fact that they had entered Canada
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GE.19-08918