Advance unedited version CAT/C/55/DR/512/2012
United Nations / CAT/C/55/DR/512/2012/ Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Advance unedited version / Distr.: General
16 September 2015
Original: English
Committee against Torture
Communication No. 512/2012
Decision adopted by the Committee at its fifty-fifth session (27 July-14 August 2015)
Submitted by: Mr. Y. (not represented by counsel)
Alleged victim: The complainant
State party: Canada
Date of complaint: 6 January 2012 (initial submission)
Date of decision: 28 July 2015
Subject matter: Deportation to Pakistan
Procedural issues: Admissibility – exhaustion of domestic remedies
Substantive issues:
Article of the Convention: 3, 22
[Annex]
Annex
Decision of the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (fifty-fifth session)
concerning
Communication No. 512/2012[*]
Submitted by: Mr. Y. (not represented by counsel)
Alleged victim: The complainant
State party: Canada
Date of complaint: 6 January 2012 (initial submission)
The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 28 July 2015,
Having concluded its consideration of complaint No. 512/2012, submitted to the Committee against Torture by Mr. Y. under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the complainant and the State party,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention against Torture
1.1 The complainant is Mr. Y., a Pakistani national born on 2 September 1957. He claims that his deportation to Pakistan would constitute a violation by Canada of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The complainant is not represented by counsel.
1.2 On 18 July 2012, the Committee, acting through its Rapporteur on new complaints and interim measures, registered the complaint with provisional interim measures. On 30 April 2014, the Committee, acting through the same Rapporteur, denied the request of the State party to lift interim measures.
The facts as presented by the complainant
2.1 The complainant asserts that in 1988, he and his family converted to the Shia faith and joined the Pakistan People’s Party (PPP) and that in 1990, when the PPP lost its status as the ruling party to Islam Jamhoori Ittehad (IJI), he began to be targeted by “Sunni activists” who were living in the neighborhood and who did not approve of his conversion to the Shia faith and membership in the PPP. The complainant maintains that in March 1991, Sunni activists beat his seven-year-old son in the street for no apparent reason, and that when he approached the activists, they told him that Shias are non-believers whose presence is no longer tolerated in Pakistan. The complainant submits that when he tried to report the incident, the police refused to register the complaint on the ground that they could not file a report against members of the ruling party. The complainant asserts that the same day, eight Sunni activists broke into the complainant’s home and beat him, telling him that converts deserved to die.
2.2 The complainant maintains that instead of receiving support from the local police after the attack in his home, a few days later the police raided his home and arrested him, keeping him blindfolded and moving him from one place to another without providing any explanation. The complainant claims that he was detained in a dark cell and was given only one meal a day; that he was forced to stay awake throughout the night; that the police officers yelled at him that he would remain in detention unless he renounced his support for the PPP and converted back to the Sunni faith; that the officers beat him, dragged him on the floor, kicked him and interrogated him concerning his involvement with Shia leaders and concerning his activities with the PPP; that he was not allowed family visits or access to a lawyer; and that his entire body and face were swollen due to the constant torture he endured. The complainant submits that on one occasion, he was taken into an interrogation room where he was kicked, punched and cursed at, causing him to fall on the floor and crack his nose bone, which resulted in the loss of blood and blinding pain. The complainant asserts that the police officers forced him to stand up, gave him a towel for his bleeding nose, and told him they would free him if he signed a blank piece of paper and dated it 19 September 1991. The complainant maintains that he signed the paper out of fear of further beatings. He submits that later that night, the officers blindfolded him, ushered him into a van, and left him in a deserted area about two kilometres from his home. The complainant states that he managed to reach a friend whom he called from a nearby grocery store. The friend took him to the hospital, where he underwent an X-ray examination, which revealed a fracture on his eye socket and nose bone. The complainant stayed at the hospital for a few days to be operated on. During his stay at the hospital, his friends told him that the complainant’s family had left their home to go into hiding in a village in Maqboolpur, which is about 210 kilometres away in the Jhang District. The complainant submits that because his house had been looted and his family had fled, he decided to join them in the Jhang District, but soon realized that this area was more dangerous due to a higher level of religious intolerance. The complainant maintains that he was soon identified by the leading party as an opponent once he started attending the Shia cult; and that his friends alerted him that he was on the hit-list of the political party Sipah-e-Sahaba, and should therefore leave the country. He further alleges that when he was in detention, his wife’s uncle, a fanatical Sunni cleric named S.A., had tried to convert the complainant’s wife back to the Sunni faith; and that S.A. had always opposed his niece’s marriage to the complainant because the latter did not belong to the extended family and had ruined his niece’s life by converting to the Shia faith.
2.3 The complainant submits that on 11 August 1992, he managed to flee to the United States of America with counterfeit documents. He filed an asylum application there based on political grounds and did not mention that the main reason for his departure from Pakistan was his religion because he had been told that the American authorities did not accept asylum applications based on religious grounds. The complainant asserts that the American Immigration Court, while not challenging his credibility, rejected his application on the ground that the situation was improving in Pakistan. However, the complainant argues that he remained in America for the following 10 years because the American authorities were considering granting amnesty for illegal immigrants. The amnesty policy for illegal immigrants was cancelled in the wake of 11 September 2001. The complainant therefore decided to flee to Canada in 2003 and seek asylum there, as he feared being removed to Pakistan, where he believed he would be a victim of an honour crime by his wife’s uncle.
2.4 The complainant maintains that while he was in the United States of America, he kept in touch with his wife through the internet and through phone calls, but that when he moved to Canada in 2003, his wife suddenly fell out of touch. The complainant asserts that his relatives informed him that his wife’s uncle had persuaded her to file for divorce and convert back to the Sunni faith. The divorce was pronounced in December 2003, but the complainant only found out about it in May 2004. The complainant asserts that the divorce ignited tensions among his relatives; that his ex-wife’s relatives stated that he had ruined her life and that they would avenge this; that one of his nephews was murdered; that the complainant’s cousin, her son, and her niece were also subsequently murdered; and that the complainant’s ex-wife’s relatives admitted to committing all these murders and threatened that they would kill him if he returned to Pakistan.
2.5 The complainant claims that he arrived in Canada on 3 March 2003 and filed his refugee claim on the same date. He was informed he would be given a hearing, but he never received any notice of the time and place of the hearing. He was later informed that he had not appeared at the hearing and that his refugee claim had been rejected on this basis. The complainant maintains that he then filed an application for Pre-Removal Risk Assessment (PRRA), which was rejected on 18 October 2011 on the ground that he had not established a risk of being killed, persecuted, tortured or subjected to cruel, inhuman or unusual treatment or punishment should he be returned to Pakistan. After the PRRA application was rejected, the complainant applied to the Federal Court for judicial review; this application was rejected on 13 July 2012.
The complaint
3.1 The complainant claims that the State party would violate article 3 of the Convention by removing him to Pakistan, where he faces persecution by three different groups. He asserts that he is at risk of being harmed by the ruling political parties in Pakistan (namely, IJI, which is a coalition consisting of the Muslim League, Jamaat-e-Islami and a few other parties); by unnamed religious parties that have been killing thousands of Shia Muslims over the past two decades in Pakistan; and by his former in-laws, who, led by his ex-wife’s uncle S.A., have vowed to obtain revenge because the complainant made his ex-wife convert to the Shia faith. The complainant asserts that he would “definitely be tortured and killed” if he were to return to Pakistan.
3.2 The complainant recalls that in 1991, he was illegally arrested, detained and tortured by members of the IJI, which has become influential in Pakistan. The complainant argues that one of the perpetrators, I.K., has extensively been involved in kidnappings, drug trafficking, rape, killings and torture and personally knows S.A., which renders the complainant more vulnerable. The complainant submits that the police has never taken any action against I.K.
3.3 The complainant argues that he most fears persecution by unspecified religious parties, some of which have become increasingly involved in bombings and killings of Shia Muslims. The complainant maintains that if he returns to Pakistan, he will be targeted by these religious parties and the police will not do anything to protect him, especially since S.A. wields influence throughout the country.
3.4 As for the fears of persecution from his former in-laws, the complainant argues that the previous four killings that occurred within his family were premeditated, and that killers were not convicted because they left very little evidence. The complainant maintains that the perpetrators of the killings are therefore free, and that the police is not actively investigating the crimes because the victims’ families are not wealthy enough to offer bribes and are not well-connected with high-ranking officials or politicians. The complainant argues that if he returns to Pakistan, he will be discovered and targeted by his former in-laws.
3.5 The complainant submits translations or copies of the following documentation in support of his claims: (a) a judgment dated 6 December 2003 granting the complainant’s ex-wife’s claim for dissolution of marriage; (b) a police report filed in Lahore by N.A. in 2005, concerning an attack on his son, who the complainant states is his nephew; (c) a police report filed in Lahore D.H. concerning what the complainant refers to as the triple murder of his cousin, her son, and her brother’s daughter in 2009; (c) an affidavit dated 16 August 2011 from M.M., who states he is the complainant’s cousin and generally supports the complainant’s allegations concerning the threat he faces from political rivals and his in-laws; and (d) an affidavit dated 16 August 2011 from K.M., who states he is the President of the Pakistan Canada Cultural Equation of Manitoba and a longtime friend of the complainant; he claims that the complainant will face grave danger if he returns to Pakistan, due to his membership in the PPP and his conversion to the Shia faith.[1]
State party’s observations on admissibility and the merits
4.1 In its observations dated 9 January 2013, the State party submitted its observations on admissibility and the merits of the communication. The State party adds certain facts concerning the complainant’s refugee status applications. It notes that the complainant’s refugee claim in the USA was rejected in 1993, and that the complainant alleges that the reason for which the claim was rejected was that the political situation in Pakistan was improving. The complainant also claims that he had been advised not to raise a risk of persecution based on religious belief in his US asylum application and that therefore the US officials had only considered his claim of persecution on account of his political beliefs. The complainant remained unlawfully in the USA until March 2003, when he came to Canada. The complainant’s refugee claim in Canada was deemed abandoned on 22 April 2004, after he failed to confirm his readiness to appear for his refugee hearing and further failed to appear at a hearing in the abandonment proceedings.