CAT/C/63/D/767/2016
suspensive effect. On 22 July 2016, the Canada Border Services Agency informed the
complainant by telephone that he should voluntarily leave Canada by 19 August 2016. On
10 August 2016, the Agency declined his application to defer his removal and he was
therefore due to be forcibly removed from Canada on 19 August 2016.
2.7
The complainant requested that interim measures be indicated to the State party to
prevent his removal to Pakistan while his communication was being considered.
The complaint
3.1
The complainant alleges that his deportation to Pakistan would put him at risk of
torture or death at the hands of Lashkar-e-Taiba and the family of his girlfriend, in violation
of article 3 of the Convention. He also claims that he cannot count on any protection from
the authorities of Pakistan and that he is also at risk of torture and arbitrary detention in
relation to blasphemy charges owing to his status as a failed refugee.
3.2
The complainant asserts that the aforementioned risk will be present in every part of
Pakistan and that no flight alternatives are therefore available in his case.
State party’s observations on admissibility and the merits
4.1
On 17 February 2017, the State party provided observations on admissibility and the
merits of the complaint. The State party submits that the complainant has failed to exhaust
all available domestic remedies that might allow him to remain in Canada. In particular, he
failed to apply to the Federal Court for leave to seek judicial review of the negative
decisions of 29 December 2015, on his application for a pre-removal risk assessment, and
of 10 August 2016, on his request to the Canada Border Services Agency for an
administrative deferral of his removal. His application for permanent residence based on
humanitarian and compassionate considerations is still pending. These are effective
domestic remedies to be exhausted prior to submitting a communication. The complainant
has also been eligible to apply for a second pre-removal risk assessment since 29 December
2016.
4.2
The State party submits that the communication falls outside the scope of article 3 of
the Convention, since the complainant fears persecution by non-State actors, that is, his
former girlfriend’s family and members of Lashkar-e-Taiba, a non-State entity banned by
the Government of Pakistan. There is no evidence that public officials were in any way
involved with or acquiesced to the complainant’s alleged assaults by members of Lashkare-Taiba in 2010.
4.3
The complainant has failed to substantiate, even on a prima facie basis, that he faces
a real, foreseeable and personal risk of torture in Pakistan, even if the human rights
situation in the country could be described as problematic. There is no evidence that he has
been or will be subject to torture at the hands of public officials or anyone acting in an
official capacity, or that the State of Pakistan has or would consent to or acquiesce in such
mistreatment. The complainant’s allegations that he and his family are wanted on
blasphemy charges or that he was declared a Qafir are unsubstantiated. He has provided no
evidence, before either the domestic authorities or the Committee, that there are criminal
charges pending against him, or that he is being investigated by the police. Regarding being
declared a Qafir, he does not specify by whom and when such a declaration was made and
does not provide any document in this connection.
4.4
The State party submits that the complainant’s risk has been thoroughly assessed by
the domestic authorities. On 4 June 2013, the Refugee Protection Division heard the case of
the complainant, who claimed protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, alleging a fear of persecution based on his religion. On 15 October
2013, the Refugee Protection Division denied the complainant’s claim for protection,
finding that he did not face a personal risk of persecution, cruel and unusual treatment or
punishment or a risk to his life. The Division rejected the complainant’s application on the
ground that he was not a credible witness for lack of probative evidence to substantiate his
allegations. On 20 March 2014, the Refugee Appeal Division rejected the complainant’s
appeal on the ground that he had failed to comply with the established time limits and to
provide further documentation. On 12 November 2014, the Federal Court denied him leave
3