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2.5 The petitioner submits that he fears for his life and safety if he is returned to Iran.
Furthermore, the Iranian authorities would be alerted to his return, because the petitioner
would require travel documents issued by Iran. The petitioner alleges that the State party did
not assess the risks he faced upon his return. The petitioner alleges also that he has never been
assessed for determining the likelihood that he will commit more crimes.
The complaint
3. The petitioner claims that his forced return to Iran would violate articles 3 and 16 of the
Convention against Torture and Other Inhuman or Degrading Treatment or Punishment. He
argues that there are substantive grounds for believing that he would be in danger of being
subjected to torture when deported, because he had been tortured before he left Iran and
because he would probably be detained and severely punished for his refusal to comply with
the daily reporting obligations of the Komiteh. The petitioner claims further that refugees and
refugee claimants are at risk of torture upon their return to Iran.
State party's observations on admissibility and merits
4.1 The State party submits that the petitioner has not exhausted all effective domestic
remedies. The State party argues that the petitioner has failed to seek a ministerial exemption
on humanitarian and compassionate grounds under subsection 114 (2) of the Canadian
Immigration Act and section 2.1 of its Immigration Regulations. This remedy would have
enabled the petitioner to apply to the Minister on Citizenship and Immigration at any time for
an exemption from the requirements of the immigration legislation or for admission to Canada
on compassionate or humanitarian grounds. The State party recalls the earlier findings of the
Committee that humanitarian and compassionate applications are an available and effective
domestic remedy.(1)
4.2 The State party submits further that the petitioner's claim of violations of his rights
established by articles 3 and 16 of the Convention are not substantiated. The petitioner did not
establish prima facie that there are substantial grounds for believing that his deportation would
have the foreseeable consequence of exposing him to a real and personal risk of being tortured
if returned to Iran. The isolated past incident of torture does not establish such a risk of torture
upon his return. The State party argues that the petitioner has only alleged to have been
tortured on occasion of his first detention in 1984, but not in any of the subsequent detentions.
His last two detentions lasted only for 24 hours and the petitioner was released with only an
obligation to report daily. The State party concludes that the treatment of the petitioner
followed a pattern of decreasing severity and that today he is not of interest for the authorities
in Iran.
4.3 The State party submits that given the Committee's interpretation of article 3 as offering
absolute protection irrespective of an individual's past conduct, the determination of the risk
must be particularly rigorous. In this regard, the State party submits that a risk assessment was
conducted when the Minister of Citizenship and Immigration's delegate considered whether
the petitioner was a danger to the public and should be removed from Canada. A new
assessment by the Department of Citizenship and Immigration in preparation of the response
of the State party to the Committee confirmed the earlier finding that the petitioner is not at
risk of torture if removed to Iran. The State party argues, in this regard, that the Committee
should not substitute its own findings for those of the national proceedings since they did not
disclose abuse of process, bad faith, manifest bias or irregularities. It is for the national courts
of the States parties to evaluate the facts and evidence in a particular case and the Committee
should not become a "fourth instance" competent to re-evaluate findings of fact or review the
application of domestic legislation.
http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/c2824cc1fc644768c1256c62005... 26.02.2008