CAT/C/24/D/95/1997

L.O. (name withheld) v. Canada, Communication No.

95/1997,

U.N. Doc. CAT/C/24/D/95/1997 (2000).

Communication No. 95/1997

Submitted by: L.O. (name withheld) [represented by counsel]

Alleged victim: The author

State party: Canada

Date of communication: 23 October 1997

The Committee against Torture, established under article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 19 May 2000,

Adopts the following:

Decision on admissibility

1.1 The author of the communication is Mr. L.O., a Ghanaian national, born

on 27 December 1967, who was deported after having sought asylum in

Canada. He claims that his deportation to Ghana constitutes a violation by

Canada of the Convention. He is represented by counsel.

1.2 In accordance with article 22, paragraph 3 of the Convention, the

Committee transmitted the communication to the State party on 19

November 1997. At the same time, The Committee requested the State party

pursuant to rule 108, paragraph 9 of the Committee's rules of procedure, not

to expel the author to Ghana while his communication was under

consideration. In a submission of 22 January 1998, the State party informed

the Committee that the author had been removed from Canada on 27

October 1997, prior to the receipt by the State party of the communication

and its request for interim measures.

The facts as presented by the author

2.1 In 1987, the author, then a student, was arrested following mass protests

against educational reforms. In 1990, the author began teaching at a

secondary School. In 1992, he became a member of the New Patriotic Party

and represented this party at a polling station during elections in November

of the same year. Although he reported irregularities to the police, they were

ignored.

2.2 In September 1992, the author started his studies at the University for

Science and Technology in Kumasi. In January 1993, he became an active

member of the National Union of Ghana Students. On 24 March 1994, he

represented the University at the 24th Annual Congress of the Union and

spoke out against the educational reform policy of the Government and

against the frequent arrest of students. As a result of his speech, the author

was expelled from the university, together with 20 others. On 31 March

1994, following a demonstration by students to protest the Chancellor's

expulsion decision, the author was arrested and accused of inciting students

to protest against the Government. He states that he was stripped naked,

beaten and subjected to inhuman treatment by the police. After five days of

custody he was released thanks to a bribe. He subsequently fled the country.

2.3 As evidence of his allegations, the refers to a letter from his father dated

10 October 1995, in which his father informed him that the police had come

to the family's house to look for him. Moreover, he produces an attestation

by a psychologist indicating that he suffers from severe and chronic post-

traumatic stress disorder. He also states that there exists a brutal dictatorship

in Ghana, where no political opposition is tolerated.

2.4 The author requested asylum in Canada in April 1994. The Immigration

and Refugee Board heard his claim for refugee status on 15 December 1994.

On 25 January 1995, the claim was rejected. The author applied for review

before the Federal Court of Canada of the decision of the Immigration and

Refugee Board, which he alleged to be manifestly unreasonable and not

based on the evidence before it. On 6 September 1995, the Federal Court of

Canada denied the application for judicial review. The author emphasizes

that such a judicial review is a very limited review to gross errors of law

rather than an appeal on the merits. Moreover, he contends that this remedy

has no suspensive effect so that an applicant can be deported while his

request is pending before the Court.

2.5 In December 1996, the author applied for administrative review by a

"post claim determination officer" under the "post-determination refugee

class in Canada" programme. This programme is an administrative review

without oral hearing which, in the vast majority of cases simply reiterates

the reasons given by the Immigration and Refugee Board for refusing the

claimant. On 10 January 1997, his application under the programme was

rejected.

2.6 On 16 January 1997, the author applied for judicial review of the

decision by the post-claim determination officer. On 8 July 1997, the

Federal Court of Canada rejected his request for judicial review. The author

was then taken into custody with a view to his being deported.

2.7 On 27 October 1997, the State party removed the author to Ghana.

According to counsel, as of 5 November 1999, the author was residing

without legal status in the Netherlands and wishes to continue with his

communication against Canada.

The complaint

3.1 The author states that he would be at risk of torture upon his return to

Ghana and that deportation by the Canadian authorities constitutes a

violation of the Convention.

3.2 In Canada, the risk assessment is made by immigration officers who,

according to the author, do not have the necessary competence in matters of

international human rights law or in other legal matters and do not fulfil the

basic criteria of impartiality and independence for taking such decisions.

The author also refers to a case of the European Court of Human Rights

(Chahal v. The United Kingdom) which indicates the legal guarantees that

must be respected by the country that is deporting:

"In such cases, given the irreversible nature of the harm that

might occur if the risk of ill-treatment materialized and the

importance the Court attaches to article 3, the notion of an

effective remedy under article 13 requires independent scrutiny

of the claim that there exist substantial grounds for fearing a

real risk of treatment contrary to article 3. This scrutiny must

be carried out without regard to what the person may gave

done to warrant expulsion or to any perceived threat to the

national security of the expelling State. ... Such scrutiny need

not be provided by a judicial authority but, if it is not, the

powers and guarantees which it affords are relevant to

determining whether the remedy before it is effective."

The author affirms that the State party's procedure of risk assessment violate

this mandatory "independent scrutiny". The same authorities that study the

relevance of the removal from Canadian territory proceed to the deportation

itself.

State party's observations on admissibility

4.1 In a submission dated 9 November 1998, the State party submitted that

the communication was inadmissible for failure to exhaust domestic

remedies as required by article 22, paragraph 5 (b), of the Convention and

rule 91 of the Committee's rules of procedure.

4.2 The State party underlines that it is a fundamental principle of

international law that domestic remedies must be exhaust before remedy

from an international body may be sought. This principle gives the State an

opportunity to correct internally any wrong that may have been committed

before the State's international responsibility is engaged.

4.3 The State party argues that the author has failed to seek 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 author to apply to the

Minister on Immigration and Citizenship at any time for an exemption from

the requirements of the immigration legislation or for admission to Canada

on compassionate or humanitarian grounds. In this regard, the State party

refers to the jurisprudence of the Committee in its decision K. v.

Canada (communication No. 42/1996, 25 November 1997), where the

author had been deemed not to have exhausted domestic remedies since he

had not lodged a request for a ministerial waiver for humanitarian and

compassionate grounds.

4.4 The State party also refers to the author's claim that the judicial review

by the Federal Court of Canada has no suspensive effect and therefore

entitles the State party to deport the applicant while the Federal Court is

deciding whether such removal is legal. It emphasizes that in these cases

there is a possibility to make an application to the Federal Court for an

interim order staying removal while the decision is pending before the

Court. The criteria that are applied by the Federal Court in granting such

interim orders are: (a) the seriousness of the issue raised by the author; (b)

the irreparable harm suffered by the author in case of removal; and (c) when

the balance of convenience favours the order.

Counsel's comments

5.1 The author maintains that he has exhausted all available domestic

remedies before submitting his communication. He alleges that it is illusory

to believe that the ministerial review for humanitarian reasons, based solely

on the risk of return, would be treated differently that the post-determination

review.

5.2 It is submitted that requests for a ministerial waiver on humanitarian and

compassionate grounds and post-determination review are handled by the

same persons or persons at the same level in the same department. As a

result, without new evidence, it is obvious that the decision will be the same.

5.3 At the Federal Court level, the same argument applies: leave having

been denied for judicial review of the post-determination refusal, it could

not be granted on exactly the same facts and the same points of law at a later

stage.

5.4 The author underlines the illusory nature of the humanitarian and

compassionate review when the Federal Court has already dealt with the

issues of substance. As a consequence, and given the constant jurisprudence

of the Federal Court of Canada, there is no recourse left with any real

chance of success and the case clearly falls within the exception of article

22, paragraph 5 (b), of the Convention.

Issues and proceedings before the Committee

6.1 The Committee wishes to emphasize that although it had requested the

State party, under rule 108 (9) of its rules of procedure, not to remove the

author while his communication was pending before it, the State party was

informed too late co comply with the request. The removal took place

almost a month before the transmission of the communication.

6.2 Before considering any claims contained in a communication, the

Committee must decide whether or not it is admissible under article 22 of

the Convention. The Committee has ascertained, as it is required to do under

article 22, paragraph 5 (a), of the Convention, that the same matter has not

been and is not being examined under another procedure of international

investigation or settlement. It also notes that the communication is not an

abuse of the right of submission of such communications or incompatible

with the provisions of the Convention.

6.3 As regards the exhaustion of domestic remedies, the Committee has

taken note of the observations by the State party and by the author's counsel.

Pursuant to article 22, paragraph 5 (b), of the Convention, the Committee is

precluded from considering any communication unless it has been

ascertained that all available domestic remedies have been exhausted; this

rule does not however apply if it is established that the application of

domestic remedies has been or would be unreasonably prolonged or would

be unlikely to bring effective relief to the presumed victim.

6.4 In the present case, the State party argues that the author did not apply

for a stay of his removal before the Federal Court and failed to apply for a

ministerial exemption on humanitarian and compassionate grounds.

6.5 The author does not dispute that he did not apply for a stay of his

removal and did not apply for a ministerial waiver on humanitarian and

compassionate grounds. In this regard, the Committee first notes that an

application for a ministerial waiver on humanitarian and compassionate

grounds is a statutory remedy. Moreover, it notes that in case of refusal of

the waiver by the minister, a judicial review is open to the author with the

possibility of applying for a stay of removal. Finally, even if the author

claims that those remedies were illusory, he has furnished no evidence that

they would be unlikely to succeed. The Committee therefore considers that

the conditions laid down in article 22, paragraph 5 (b), of the Convention

have not been met.

7. The Committee consequently decides:

(a) That the communication is inadmissible;

(b) That this decision may be reviewed under rule 109 of the Committee's

rules of procedure upon receipt of a request by or on behalf of the author

containing information to the effect that the reasons for inadmissibility no

longer apply;

(c) That this decision shall be communicated to the State party, the author

and his representative.

[Done in English, French, Russian and Spanish, the English text being the

original version.]