CAT/C/21/D/66/1997
page 4
among the police forces in India. Persons who appear on that list are
routinely taken into custody and are targets for illegal detention, torture
and extortion if they are believed to have worked for armed Sikh nationalists.
Notwithstanding the fact that he almost served 10 years in jail, the author
believes that his name will appear on such a list. The author also notes that
apparently Indian authorities monitor the return to India of those persons who
failed to obtain political asylum in other countries.
3.4
The author argues that he could not escape the danger of being subjected
to torture by fleeing to other parts of India. Reportedly the Punjab police
has made several forays into other Indian States in order to pursue their
targets. It is further stated that neither in Pakistan would he be safe.
3.5
The author claims that both the certification of his being a danger to
the public and the decision on his removal from Canada constitute a violation
of article 3, paragraph 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. The certification renders him
ineligible to make an application to the panel of the Convention Refugee
Determination Division of the Immigration Review Board for refugee status
under the United Nations Convention on Refugees of 1951 and as a result
exposes him to the risk of removal from Canada. He further submits that there
are no reasons which would justify the certification since he is no longer a
member of the AISSF and, apart from the 1994 hijacking, he did not commit any
other crime or criminal offence. As to the decision to remove him from
Canada, the author draws attention to the fact that India has not ratified the
Convention against Torture and, therefore, he would not have any possibility
to apply to the Committee from India. He notes that the other convicted
hijackers have been granted temporary residence in Switzerland, one was
granted asylum in Germany in April 1997 and another one who went to Canada was
not held in detention and certified as a danger to the public.
State party’s observations on admissibility
4.1
On 5 May 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.
4.2
In its response of 15 October 1997 the State party contested the
admissibility of the communication. It states that the author entered Canada
illegally. He misrepresented himself at the port of entry producing an Afghan
passport and claimed refugee status. In his refugee claim form, completed
with his counsel, as well as in an interview with an Immigration Examining
Officer on 3 February 1995 he maintained his false identity and indicated
having no criminal convictions. Nor did he indicate his membership in any
terrorist organization.
4.3
The author was arrested by immigration authorities on 13 September 1995,
when his true identity became known. On 25 October 1995 an immigration
officer, pursuant to section 27 of the Immigration Act prepared a report
alleging that the author was inadmissible in Canada as a person who there are
reasonable grounds to believe had been convicted outside Canada of an offence
that, if committed in Canada would be punishable by a maximum term of