CAT/C/26/D/123/1998

Z.Z. (name withheld) v. Canada

Communication No. 123/1998

U.N. Doc. CAT/C/26/D/123/1998 (2001).

Communication No. 123/1998

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

Alleged victim: The author

State party: Canada

Date of communication: 11 November 1998

The Committee against Torture, established under Article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 15 May 2001,

Having concluded its consideration of communication No. 123/1998,

submitted to the Committee against Torture 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

author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.1 The author of the communication, dated 11 November 1998, is

Mr. Z.Z., a citizen of Afghanistan, born on 8 July 1948. He was

deported to Afghanistan on 27 November 1998, following a

conviction for drug offences in Canada. He claims that his

deportation to Afghanistan 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 11

December 1998 and requested the latter to provide observations on

the admissibility and merits of the communication.

The facts as presented by the author

2.1 The author allegedly fled Afghanistan in 1977 at the time of the

armed intervention of the Soviet Union in the Afghan conflict. His

brother was killed by Soviet forces and he feared the same fate. He

went to Iran where he remained for two years without legal status. He

then travelled to Pakistan where he also remained two years without a

legal status. From Pakistan, the author decided to enter India where

he requested to be recognized as a refugee by UNHCR. He was

allegedly recognized as a Convention refugee but did not keep any

evidence of it. However, having no work permit and no right to

education, the author decided to join his brother who had been

recognized as a refugee in Canada.

2.2 The author arrived in Canada in 1987 on a false passport. Upon

his arrival in Montreal, he applied for asylum. He was found to have a

credible basis for his refugee claim, which entitled him to apply for

permanent residence, and he became a permanent resident in 1992.

2.3 On 29 June 1995, the author, found guilty of importing narcotics,

was sentenced to 10 years' imprisonment. On 10 April 1996, the

Minister of Citizenship and Immigration declared him a "danger to

the public in Canada" and decided that he should therefore be

removed to his country of origin. The Minister argued that the serious

criminal offence of which he had been convicted and the need to

protect Canadian society outweighed any humanitarian and

compassionate considerations. The author applied for review of this

decision before the Federal Court but his application was denied.

2.4 On 4 November 1998, the author attended a detention review

hearing during which he was told that his detention would continue

and that his removal would take place on 14 November 1998. The

same day, counsel for the author faxed a request to the Removal

Officer to defer the deportation until a proper risk assessment had

been made, referring to recent documentation about the situation in

Afghanistan.

2.5 The request being denied, the author sought a stay of the

expulsion order in the Federal Court Trial Division, arguing that

because of his ethnic background, he would be subjected to torture if

removed to Afghanistan. On 12 November 1998, the Court refused

the stay. Finally, on 13 November 1998, the author applied for an

interim injunction before the Ontario Court of Justice to stay the

execution of the deportation order. The application was dismissed

because the matter had already been decided by the Federal Court.

2.6 In his submission to the Committee dated 11 November 1998, the

author argued, in relation to the issue of exhaustion of internal

remedies, that as soon as the Court rendered its decision on the

application for the stay of removal, there would be no other internal

remedy left.

2.7 The author alleges that the State party did not make a proper risk

assessment at the time of the decision in April 1996 nor any

subsequent review of the risk assessment, despite the existence of

major political and human rights problems in the country to which the

author was to be deported. The Taliban had become a major actor in

the Afghan political situation and conditions in the country had

changed dramatically as a consequence.

2.8 The author is a Sunni Muslim and a member of the Tajik ethnic

group. The bigger part of Afghanistan is at present controlled by the

Taliban who, although Sunnis, are of a different ethnic group, the

Pashtun.

2.9 The author states that Afghanistan continues to experience civil

war and political instability and that ethnic divisions are increasingly

influencing the fighting. The Taliban, who emerged as a military and

political force in 1994, are an ultra-conservative Islamic movement.

In January 1997, they were controlling two thirds of Afghanistan

including Kabul, the capital.

2.10 In addition to the general situation of insecurity caused by the

internal armed conflict between the Taliban and other factions, the

human rights situation in the territory controlled by the Taliban is of

serious concern. According to the author, there is discrimination

between the different ethnic groups. The Taliban have detained

hundreds of people solely because of their ethnic origin. Among these

minority groups are the Uzbeks, Tajiks, Hazaras, Shi'ite Muslims and

Turkmen. The author submits that a significant number of Tajiks have

been detained and some of them have disappeared.

2.11 The author also refers to Amnesty International reports stating

that Taliban guards have beaten and kicked people in custody and that

long-term prisoners have been severely tortured. It is also submitted

that according to a Human Rights Watch report on one of the worst

massacres of civilians committed by the Taliban, in August 1998

when they took Mazar-el-Sharif, the author's city of origin, in the

days after the incident the Taliban searched and arrested all males of

Hazara, Uzbek and Tajik origin in the city. Moreover, since the city

jail was overcrowded, thousands of the detainees were transferred to

other cities in large container trucks holding 100-150 persons. In two

known instances, nearly all the men in the container were asphyxiated

or died of heat stroke.

The complaint

3.1 At the time of the submission of his communication, the author

alleged that he would be at serious risk of torture if he were removed

to Afghanistan, and that the decision to forcibly remove him to

Afghanistan would entail a violation of article 3 of the Convention. It

is also submitted that no competent official of the State party has

properly assessed whether there was a risk of torture. As a result,

there has been both a substantive and a procedural violation of the

Convention.

3.2 The author recalls that the specific prohibition on removing

persons to where they may be at risk of torture is explicitly enshrined

in article 3 of the Convention against Torture. In determining whether

article 3 should apply, the Committee should base itself on whether

there is a consistent pattern of gross, flagrant or mass violations of

human rights in the country concerned and whether the author runs a

personal risk, which may emanate from his/her class or character.(1)

State party's observations on the admissibility and merits

4.1 In a submission dated 14 December 1999, the State party

transmitted to the Committee its observations on both the

admissibility and merits of the case.

On the admissibility

4.2 The State party submits that the communication was inadmissible

as the author had not exhausted the internal remedies as required by

article 22 (5) (b) of the Convention and rule 91 of the Committee's

rules of procedure. It underlines that it is a fundamental principle of

international law that local remedies must be exhausted before a

remedy is sought from an international body. 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 Under the Immigration Act, judicial review of decisions are

available before the Federal Court Trial Division, and it is submitted

that an applicant does only need a "fairly arguable case" or "a serious

question to be determined" for leave to be granted.

4.4 The State party argues that the Committee, as well as other

international tribunals, consider judicial review as an available and

effective remedy. In the case M.A. v. Canada (CAT/C/14/D/22/1995),

the author was granted refugee status but later declared a threat to

Canadian security so that he had to be removed from Canada. The

communication was declared inadmissible because the author was in

the process of challenging the removal decision by way of judicial

review. The European Court of Human Rights has a similar

jurisprudence (2) and considers that judicial review provides a

sufficiently effective remedy in asylum cases.

4.5 In the present case, the author's application to the Federal Court

Trial Division for leave for judicial review of the Minister's opinion

that the author constituted a danger to the public was denied on 8

September 1997. On 5 November 1998, the author applied to the

Federal Court Trial Division against the decision of the Removal

Officer not to defer deportation. He subsequently submitted the

present communication to the Committee on 11 November 1998

before the Federal Court could examine his application.

4.6 Moreover, the author failed to perfect the application for judicial

review by filing an Application Record within the prescribed period.

In this regard, the State party again refers to the jurisprudence of the

European Court of Human Rights according to which complainants

have to respect and follow domestic procedures also with respect to

time limits before bringing an international claim.(3)

4.7 The State party argues that the Federal Court could have

examined the case if the application of 5 November 1998 had been

perfected and leave had been granted, which could have led to a

reconsideration of the case.

4.8 The author also brought an action in the Federal Court Trial

Division challenging the constitutionality of the provision denying

him the opportunity to claim refugee protection. He also argued that

the Immigration Act and the immigration process are contrary to the

Canadian Charter of Rights and Freedom because neither requires a

risk assessment. The author, however, did not continue this action,

which was, at the time of the submission, still pending. He could

indeed have instructed his lawyer to proceed on his behalf. The State

party argues in this connection that the author's deportation does not

render his rights or pending actions ineffective or moot.

4.9 The State party also submits that the author could have sought a

humanitarian and compassionate assessment of his case. It refers to X

v. Sweden where the Committee found that such an application was

an effective remedy since the Appeals Board in that case had the

competence to grant the authors a residence permit.(4) This option

was available to the author prior to the deportation and there was no

time limit for submitting it.

4.10 The State party deems that the above-mentioned remedies are

effective in the sense of article 22 (5) of the Convention. The author

should therefore have pursued them prior to petitioning the

Committee and has failed to exercise due diligence in not doing so.

On the merits

4.11 As for the risk faced by the author, the State party refers to the

principle, laid down by the Committee in the case Seid Mortesa

Aemei v. Switzerland,(5) that it has to determine "whether there are

substantial grounds for believing that [the author] would be in danger

of being subjected to torture [in the country to which he is being

returned]" and "whether he would be personally at risk". The State

party also recalls that the burden of proof is on the author to establish

that there are substantial grounds to believe that he or she would be

personally at risk of being subjected to torture.

4.12 The State party submits that since the protection provided by

article 3 is, according to the Committee's jurisprudence, absolute,

irrespective of the author's past conduct, the determination of risk

must be particularly rigorous. To that purpose, it refers to a decision

of the European Court of Human Rights where it is stated with regard

to article 3 of the European Convention on Human Rights that "the

Court's examination of the existence of a risk of ill-treatment in

breach of Article 3 at the relevant time must necessarily be a rigorous

one in view of the absolute character of this provision".(6)

4.13 In order to assess the risk of torture faced by the author, the State

party contends that the following factors are pertinent: (a) whether the

State concerned is one in which there is evidence of a consistent

pattern of gross, flagrant or mass violation of human rights; (b)

whether the author has been tortured or maltreated by or with the

acquiescence of a public official in the past; (c) whether the situation

referred to in (a) has changed; and (d) whether the author has engaged

in political or other activity within or outside the State concerned

which would appear to make him particularly vulnerable to the risk of

being tortured.

4.14 Contrary to the author's allegations, the State party emphasizes

that the risks faced by the author upon his return to Afghanistan were

assessed by the Minister of Citizenship and Immigration in April

1996 when considering whether the author was a danger to the public.

The jurisprudence cited by the author to support his argument (7)has

not always been followed and is now under appeal before the Federal

Court of Appeal. Moreover, the State party submits that it is not for

the Committee to question its internal procedures on risk assessment.

Finally, such a risk assessment was also evaluated by the Federal

Court Trial Division on the request to stay the deportation.

4.15 The State party considers that the author has not demonstrated,

on a prima facie basis, that he is personally at risk of torture because

of his ethnic origin. Although it is not denied that there are violations

of human rights perpetrated by the Taliban, there is no indication that

the Tajiks are specifically targeted. The State party refers to

information from the Research Directorate of the Canadian

Immigration and Refugee Board stating that persecution is rather

aimed at the Shia Hazar people and the Turkish-speaking supporters

of General Dostam. The same source of information underlines that,

"generally, people who are suspected of supporting … the Northern

Alliance would be under tight surveillance from the Taliban security

forces. Ethnic affiliation is not a primary reason for being targeted by

the Taliban …; however, Tajiks living under the Taliban rules are

careful and venture in the streets of Kabul with caution". Moreover,

the report indicates that Tajiks can freely and safely live in the north

of Afghanistan while the ones living on the territory controlled by the

Taliban are not systematically targeted for surveillance. There is also

no evidence that torture is routinely practised by the Taliban against

the Tajiks, the author himself acknowledges in his communication

that "torture does not appear to be a routine practice in all cases".

4.16 The State party further argues that the author did not bring any

evidence that he would be personally at risk of torture in Afghanistan.

There is no evidence that the author was ever arrested and the reasons

for which he left his country in 1977 no longer exist. Neither has the

author stated that persons in his entourage were persecuted or tortured

because they were Tajiks, nor has the author been engaged in a

political activity that could draw the Taliban's attention. The facts

alleged therefore do not reveal a prima facie case that his expulsion

would expose him to the risk of torture.

4.17 The State party submits that the present communication is based

on exactly the same facts as those presented to the Minister of

Citizenship and Immigration when he made his "danger opinion" and

those presented on judicial review before the Federal Court Trial

Division. As a consequence, since the national proceedings did not

disclose any manifest error or unreasonableness and were not tainted

by abuse of process, bad faith, manifest bias or serious irregularities,

the Committee should not substitute its own findings on whether the

author risks being subjected to torture in Afghanistan; it should not

become a "fourth instance" that would re-examine the findings of

facts by the internal authorities.

4.18 As a consequence, the State party is of the view that, on the basis

of the criteria referred to in paragraph 4.13 above, there is no

indication: (a) that the author was tortured or maltreated by or with

the acquiescence of a public official in Afghanistan in the past; (b)

that he is currently being sought by Afghan authorities; (c) that

persons in his immediate circle were arrested or tortured because they

are Tajiks; (d) that ethnic Tajiks are specifically targeted for

mistreatment; and (e) that he has been involved in any high-profile

activity that could draw the attention of the Taliban.

4.19 The State party therefore requests that, if the communication is

declared admissible, it is declared without merits.

Counsel comments

On the admissibility

5.1 In a submission of 21 January 2000, counsel for the author made

her comments on the observations of the State party. In connection

with the exhaustion of internal remedies, counsel recalls that the

author was granted permanent residence in 1992 and that he was later

convicted of a criminal offence leading to the deportation order

issued against him. Under the Immigration Act, a person can be

deported from Canada and denied access to the refugee procedure if

the Minister certifies the person as a "danger to the public in Canada".

In this case, the only issue is whether or not the person is a danger to

the public in Canada, not whether the person is at risk. As a result,

when such a decision is taken, the person no longer has a right to

appeal to the Appeal Division and is also denied a right to make a

refugee claim.

5.2 Counsel reiterates that the procedure for certifying that a person is

a danger to the public in Canada is not an adequate assessment of

risk. She considers that the position of the State party has consistently

been that, in certain circumstances, persons who constitute a danger

to the public can be deported to their countries of origin even when

there is a risk of torture. This was also the substance of the ruling of

the Court of Appeals in the case Suresh v. M.C.I. (Minister of

Citizenship and Immigration). The interpretation of the Federal Court

of Appeal is that the Convention does not prohibit in all cases

deportation to countries where there is a significant risk of torture. It

is therefore counsel's contention that the official position of the State

party, as substantiated by the second highest court in Canada, is that

persons can be deported to countries where there would be a

substantial risk of torture if there is a compelling State interest.

Counsel submits that the Committee must act urgently to make its

view clear to the State party that removal to countries where there is a

risk of torture is not permitted under any circumstances.

5.3 Counsel argues that, as a result of the deportation and the fact that

she is unable to receive instructions from the author, the obligation to

challenge the decision to execute deportation by internal remedies has

become moot. The same may be said for the questioning of the

constitutionality of the provision denying the author the opportunity

to claim refugee protection. As a consequence, once the author was

unable to obtain a stay of the deportation and was indeed deported, all

domestic remedies had been exhausted because the deportation order

was executed. To perfect applications challenging a decision to

execute a decision of removal under these circumstances would,

according to counsel, be meaningless.

On the merits

5.4 With respect to the merits, it is the counsel's opinion that no

person has adequately and properly assessed the risk run by the

author. To allow any assessment of risk to be made within the context

of a determination as to whether a person is a danger to the public to

permit his deportation is, according to counsel, unsatisfactory. The

risk assessment has to be conducted independently of any evaluation

of danger. Counsel submits that the Committee should know whether

or not the State party concluded that the author was at risk. This is

particularly important in light of the position of the State party that

deportation to countries where a person risks torture is possible under

certain circumstances.

5.5 Moreover, counsel is of the opinion that the assessment of risk

made by the State party after the removal of the author is not

satisfactory. The assessment should have taken place prior to the

removal.

5.6 As for the current situation of the author, counsel acknowledges

that she has been unable to communicate with him. Counsel argues,

however, that the State party has not made any effort to verify the

author's current situation and determine whether he is safe and at risk

of being subjected to torture.

Additional comments by State party

6.1 In a submission of 10 May 2000, the State party argued with

regard to the admissibility of the case that a positive determination on

the application on humanitarian and compassionate grounds could

have enabled the author to remain in Canada. Furthermore, the State

party reiterates its arguments that the removal of the author did not

render his rights or pending actions ineffective or moot.

6.2 With regard to the merits of the case, the State party submits that,

in its consideration as to whether the author constituted a danger to

the public in Canada, the Minister did assess the risk faced by the

author in case of return to Afghanistan. Such assessment was also

done by the Federal Court Trial Division in its 12 November 1998

decision.

6.3 The State party finally reiterates its concern that the Committee

should not become a fourth instance by re-evaluating findings of

domestic courts unless there was a manifest error or if the decision

was tainted by abuse of power, bad faith, manifest bias or serious

irregularities.

Additional comments by counsel on behalf of the author

7.1 In a submission of 7 June 2000, counsel underlined that the

application on humanitarian and compassionate grounds is not an

effective remedy because it does not stay the removal; in any event it

was useless to pursue an application challenging a decision of

removal after the deportation had been executed.

7.2 Counsel also repeated that the "danger opinion" is not a risk

assessment and that the decision of the Federal Court was based on

misconstructions of evidence, and the judge had no expertise in

assessing risk.

Issues and proceedings before the Committee

8.1 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.

8.2 With regard to 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. In this connection, the

Committee notes that the author was removed to Afghanistan on 27

November

1998.

The

Committee

therefore

declares

the

communication admissible.

8.3 The Committee notes that both the State party and the author's

counsel have provided observations on the merits of the

communication. It therefore decides to consider the merits at the

present stage.

8.4 The Committee is of the opinion that the author did not bring any

evidence that he would be personally at risk of being subjected to

torture if he were returned to Afghanistan. The Committee also noted

that the author has not suggested that he had been subjected to torture

in the past. Nor has he alleged that he has been involved in any

political or religious activities such that his return could draw the

attention of the Taliban to the extent of putting him at personal risk of

torture.

8.5 The author only brought information on the general situation in

Afghanistan and claimed that, as a member of the Tajik ethnic group,

he would face torture upon return to Afghanistan. Although it

recognizes the difficulties encountered by some ethnic groups in

Afghanistan, the Committee considers that the mere claim of being a

member of the Tajik ethnic group does not sufficiently substantiate

the risk that the author would be subjected to torture upon return.

9. As a consequence, the Committee against Torture, acting under

article 22, paragraph 7, of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, is of the

view that the facts as presented by the author and as found by the

Committee do not reveal a breach of article 3 of the Convention.

Notes

1. Khan v. Canada, communication No. 15/1994,

(CAT/C/13/D/15/1994); Mutombo v. Switzerland, communication

No. 13/1993 (CAT/C/12/D/13/1993).

2. See Vilvarajah and Others v. United Kingdom, 14 E.H.R.R. 218

(30 October 1991).

3. See Bahaddar v. The Netherlands, No. 145/1996/764/965 (19

February 1998).

4. X v. Sweden, communication No. 64/1997 (19 November 1997).

5. Views, communication No. 34/1995, CAT/C/18/D/34/1995, 9 May

1997.

6. Supra, note 3.

7. Saini v. Canada (Minister of Citizenship and Immigration) [1998]

3 F.C. 315 (T.D.); Farhadi v. Canada (Minister of Citizenship and

Immigration) [1998] 4 F.C. 325 (T.D.).