CAT/C/43/D/307/2006

GE.09-46716 (E) 151209

Committee against Torture

Forty-third session

2–20 November 2009

Decision

Communication No. 307/2006

Submitted by:

Emad Yassin (represented by counsel, Mr.

Byron E. Pfeiffer)

Alleged victim:

The complainant

State party:

Canada

Date of the complaint:

29 October 2006 (initial submission)

Date of present decision:

4 November 2009

Subject matter:

Deportation of complainant to Iraq

Procedural issues:

Exhaustion of domestic remedies – Lack of

substantiation of claim

Substantive issues:

Non-refoulement

Articles of the Convention:

3, 22 (5) (b)

Rules of procedure:

Rule 107 (b) and (e)

[Annex]

* Made public by decision of the Committee against Torture.

United Nations

CAT/C/43/D/307/2006

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: Restricted*

10 December 2009

Original: English

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Annex

Decision of the Committee against Torture under article 22 of

the Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (Forty-third session)

concerning

Communication No. 307/2006

Submitted by:

Emad Yassin (represented by counsel, Mr.

Byron E. Pfeiffer)

Alleged victim:

The complainant

State party:

Canada

Date of the complaint:

29 October 2006 (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 4 November 2009,

Having concluded its consideration of complaint No. 307/2006, submitted to the

Committee against Torture on behalf of Emad Yassin 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 the following:

Decision under article 22, paragraph 7, of the Convention against

Torture

1.1

The complainant is Mr. Emad Yassin, an Iraqi national born in 1964, currently

facing deportation from Canada to Iraq. He claims that his return to Iraq would constitute a

violation by Canada of article 3 of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment. He is represented by counsel, Mr. Byron

E. Pfeiffer.

1.2

On 30 October 2006, the complainant asked the Committee to request the State party

to stay the removal order against him, pending the Committee’s final decision on his

complaint. On 31 October 2006, the Committee, through its Special Rapporteur on New

Complaints and Interim Measures, transmitted the complaint to the State party, without

requesting interim measures of protection under Rule 108, paragraph 1, of its rules of

procedure.

Factual background

2.1

The complainant was conscripted into the Iraqi military service (the “Republican

Guards”) in 1983, when Iraq was at war with Iran. One month after his release from

military service on 1 July 1990, he was again called to serve in the military, following the

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Iraqi invasion of Kuwait. He deserted the Republican Guards in or about April 1991 and

went into hiding in Iraq. He later left Iraq for Canada, via Jordan and Morocco. On 15

February 1996, he arrived in Montreal, Canada, and immediately filed an application for

refugee protection.

2.2

On 2 July 1996, the complainant submitted his Personal Information Form in

support of his refugee claim. In the form, he claimed that he had deserted the Republican

Guards during the war in Kuwait and returned to military service after an amnesty for

deserters had been issued. However, the amnesty was not respected, and he was taken by

the Military Security Police to their headquarters, where he was allegedly interrogated and

tortured for one week. He was subsequently returned to his unit to await trial. Fearing that

the trial would result in a death sentence, he escaped again. After learning that a verdict had

been sent to his military unit to execute him, he moved from one place to another in Iraq for

three years before he fled the country.

2.3

On 7 October 1996, the complainant’s claim for refugee protection was heard by the

Refugee Division of the Immigration and Refugee Board, which was competent only to

consider whether he was a Convention refugee as defined in the 1951 Convention relating

to the Status of Refugees.1 The Board informed the Minister of Citizenship and

Immigration and the complainant that he was excluded from refugee protection by virtue of

Article 1 F of the Refugee Convention.2

2.4

On 3 September 1997, the Board determined that the complainant was not a

Convention refugee, arguing that his oral testimony lacked credibility, in particular his

claim that, as a member of the Republican Guards, he had never fired on the enemy, killed

anyone, or dealt with prisoners of war or Iranian civilians; the contradictory description of

his role in the Iraqi city of Najaf in March 1991 and of the timing of his desertion; and his

implausible claim that, as a deserter sentenced to death, he was able to live with his mother

in Baghdad and work for more than three years before leaving Iraq. The Board also

considered that the crushing of the uprising against Saddam Hussein by Republican Guards

in Najaf in 1991 amounted to crimes against humanity within the meaning of Article 1 F (a)

of the Refugee Convention. Based on his rank and lengthy tenure with the Republican

Guards, the complainant was aware of the Organization’s methods and supported its

objectives. Even assuming that he deserted after three days in Najaf, he would have

participated in the indiscriminate bombing of the city. He therefore was complicit in the

crimes against humanity committed by the Guards and excluded from refugee protection.

2.5

The complainant’s application dated 22 September 1997 for leave to apply for

judicial review was denied by the Federal Court on 22 January 1998.

2.6

On 17 August 1998, the complainant applied for permanent residence on the basis of

humanitarian and compassionate grounds, alleging that his life and physical security would

be in danger if was returned to Iraq. His application was examined by a specialized officer

for risk assessment under the former Post-Determination Refugee Claimants in Canada

(PDRCC) class. The officer determined that the complainant would not be at risk of life,

1 Since the entry into force of the Immigration and Refugee Protection Act in June 2002, the Board

considers both whether the person is a Convention refugee or a person in need of protection, i.e. a

person at risk of torture within the meaning of article 1 CAT, or at risk of his life or of cruel and

unusual treatment or punishment.

2 Article 1 F of the Convention relating to the Status of Refugees (1951) reads: “The provisions of this

Convention shall not apply to any person with respect to whom there are serious reasons for

considering that: (a) he has committed a crime against peace, a war crime, or a crime against

humanity, as defined in the international instruments drawn up to make provision in respect of such

crimes […].”

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extreme sanctions or inhuman treatment upon return to Iraq. On 28 June 1999, the

complainant’s application was dismissed.

2.7

The complainant did not request leave to apply to the Federal Court for judicial

review of the decision on his humanitarian and compassionate application.

2.8

On 14 August 1999, the complainant married a Canadian citizen, who filed an

application to sponsor his immigration to Canada on 20 August 1999. On 6 March 2002,

Citizenship and Immigration Canada informed the complainant that his sponsored

application for permanent residence had been refused on the basis that he was inadmissible

to Canada, since there were reasonable grounds to believe that he had participated in crimes

against humanity. His wife’s appeal to the Immigration Appeal Division was dismissed on

5 July 2004, under Section 64 of the Immigration and Refugee Protection Act, for lack of

jurisdiction to hear her spousal sponsorship appeal with respect to a person found to be

inadmissible in Canada.

2.9

On 18 November 2004, the complainant filed an application for a Pre-Removal Risk

Assessment (PRRA) pursuant to Section 112 of the Immigration and Refugee Act. In his

PRRA application form, he claimed that after the change of regime in Iraq, he was no

longer at risk of life and cruel or unusual treatment upon return to Iraq because he had

deserted the military, but because he was a Sunni Muslim who had served in the

Republican Guards under Saddam Hussein. Abu Ghraib prison in Baghdad was full of

former members of the Republican Guards.

2.10

On 21 January 2005, the complainant was informed that his PRRA application had

been rejected, since he had been determined not to be at personal risk to his life or of torture

or cruel and unusual treatment or punishment if returned to Iraq. The PRRA officer

observed that the complainant’s name did not appear on the list of most wanted persons in

Iraq. His fear of return based on his desertion from the army no longer had an objectively

identifiable basis after the fall of Saddam’s regime. That the complainant was a Sunni

Muslim and former member of the Republican Guards was not by itself a reason that the

Coalition forces would consider him an enemy or a terrorist to be imprisoned. On the

contrary, former members of the Republican Guards were permitted to work in the civil

service or to join the armed forces of the new government. Given his low profile, there

were no grounds to believe that the complainant would be the victim of acts of vengeance.

The general instability in Iraq affected all Iraqis and was not personal to the complainant.

2.11

The complainant did not request leave to apply to the Federal Court for judicial

review of the PRRA decision.

2.12

On 11 February 2005, a removal order was issued against the complainant. On 19

October 2006, he was informed that his deportation to Iraq via Jordan had been scheduled

for 31 October 2006. On 29 October 2006, the complainant requested the enforcement

officer to defer his removal until the Committee has taken a final decision on his complaint.

By fax dated 30 October 2006, the Canadian Border Services Agency notified the

complainant that his request for deferral had been denied.

2.13

On 30 October 2006, the complainant applied for leave to apply to the Federal Court

for judicial review of the decision not to defer his removal. However, he did not submit

additional documents required to complete his application. The application was still

pending at the time of submission of the complaint. He also applied for a stay of removal.

On 31 October 2006, the Federal Court dismissed the motion for a stay.

2.14

The complainant failed to appear for his removal from Canada on 31 October 2006.

Accordingly, an arrest warrant was issued against him under Section 55 (1) of the

Immigration and Refugee Protection Act. The complainant’s current whereabouts are

unknown.

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The complaint

3.1

The complainant claims that his forcible removal to Iraq would constitute a violation

by the State party of article 3 of the Convention, as there are substantial grounds for

believing that he would be tortured and even killed in present-day Iraq for having been a

member of Saddam Hussein’s Republican Guards and because he is a Sunni Muslim.

3.2

The complainant contends that the human rights situation is so critical in Iraq that

even ordinary people are being tortured and killed. By reference to a report by the United

Nations Assistance Mission to Iraq covering the human rights situation between 1 July and

31 August 2006, he submits that torture is widespread in Iraq and that revenge killings

continue to take place against those associated with the former regime.

3.3

The complainant emphasizes that he never committed any war crimes or crimes

against humanity.

3.4

He submits that the same matter has not been, and is not being, examined under

another procedure of international investigation or settlement, and that there are no further

remedies available in the State party to prevent the Canadian authorities from returning him

to Iraq. He explains that he did not file an application for leave to apply to the Federal

Court for judicial review of the PRRA decision of 21 January 2005 because his Canadian

lawyer had advised him that his legal remedies were exhausted. He had four different

lawyers before current counsel started to represent him.

State party’s admissibility and merits observations

4.1

On 27 March 2007, the State party challenged the admissibility of the complaint for

non-exhaustion of domestic remedies and because it was manifestly unfounded, pursuant to

article 22 (5) (b) and Rule 107 (b) and (e) of the Committee’s rules of procedure.

Subsidiarily, it argues that the complaint is without merit.

4.2

The State party recalls the Committee’s jurisprudence3 that it can only consider

complaints that allege, in a substantiated manner, violations of rights protected by the

Convention, and submits that the complainant has not substantiated his allegations on even

a prima facie basis. The allegations made by him before the Committee were substantially

the same as those presented to the Canadian authorities in his application for refugee

protection. The State party argues that it is not the Committee’s role to weigh evidence or

re-assess findings of fact made by domestic courts, tribunals or decision makers,4 unless it

can be demonstrated that such findings are arbitrary or unreasonable.5 The complainant did

not claim that the domestic proceedings constituted a denial of justice or were arbitrary or

unfair or in any other way deficient, and the material submitted did not support a finding

that the decisions of the Canadian authorities suffered from such defects. Rather, the

complainant was simply dissatisfied with the outcome of his domestic proceedings and the

prospect of his potential deportation from Canada. Accordingly, there were no grounds on

which the Committee could consider it necessary to re-evaluate findings of fact, evidence

and credibility made by domestic tribunals.

4.3

On domestic remedies, the State party submits that the complainant did not apply for

leave to apply for judicial review with respect to the decision dated 28 June 1999 on his

humanitarian and compassionate application and the PRRA decision dated 21 January

3 Communication No. 163/2000, H.A.S.V. and F.O.C. v. Canada, at para. 6.3; Communication No.

236/2000, A.T.A. v. Switzerland, at paras. 4.2.–4.3; Communication No. 243/2004, at paras. 4.2–4.3.

4 The State party refers to Communication No. 148/1999, A.K. v. Australia, at para. 6.4.

5 Ibid. The State party also refers to Communication No. 135/1999, S. G. v. The Netherlands, at para.

6.6; Communication No. 223/2002, S. U. A. v. Sweden, at para. 6.5.

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2005. Moreover, he had failed to submit the required documents to complete his application

for leave with regard to the decision dated 30 October 2006 refusing to defer his removal.

The State party emphasizes that judicial review is an effective remedy. It concludes that the

complainant’s failure to seek judicial review with respect to the humanitarian and

compassionate and PRRA decisions, or to pursue his current leave application with due

diligence, makes his complaint inadmissible for non-exhaustion of domestic remedies.

5.1

On the merits, the State party recalls that article 3 of the Convention places the

burden upon the complainant to establish substantial grounds, which must go beyond mere

theory or suspicion, for believing that he would be personally at risk of being subjected to

torture upon return to his country of origin.6 The general human rights situation in a country

was insufficient to establish such a personal risk. It submits that the inconsistencies

undermining the credibility of his claim, the lack of evidence that he has been tortured in

the past, and his low personal profile as a member of the Republican Guards lead to the

conclusion that there are no substantial grounds for believing that the complainant would be

personally at risk if he returned to Iraq.

5.2

With regard to the complainant’s credibility, the State party argues that his

testimony before the Immigration and Refugee Board that he never fired on the enemy,

killed anyone or dealt with prisoners of war or Iranian citizens during his eight years with

the Republican Guards is implausible, given that he claims to have been promoted three

times during that time. Similarly, it was unlikely that, as a Sergeant, he could have

abstained from participating in any of the indiscriminate artillery attacks on Najaf, house-

to-house arrests, round-ups of clerics, public executions, and massacres of civilians during

the three days before he allegedly deserted the army. The date of desertion given before the

Board did not coincide with his statement, in his Personal Information Form (PIF), that he

deserted during the 1990 Gulf War, since the Najaf uprising occurred after the war. Lastly,

the State party reiterates that it was implausible that a deserter who had allegedly been

sentenced to death would be able to live with his mother and work in Baghdad for more

than three years without facing problems. If in fact he was a “wanted” man, it was

implausible that he would be able to obtain a passport issued in his name in 1995 and an

exit visa in 1996, as stated in his PIF.

5.3

The State party submits that the complainant has not provided any details or

corroborating evidence such as medical reports or scarring of his alleged torture by the

Military Security Police in 1992, and thus certainly not in any recent past. Furthermore,

torture under the former Saddam Hussein regime could not be taken to suggest that the

complainant would still be at risk of torture in present-day Iraq.

5.4

While acknowledging that the human rights situation in Iraq is poor, the State party

argues that the pervasive violence and instability alone are insufficient to substantiate the

complainant’s allegation that he would face a foreseeable, real and personal risk of torture

upon return to Iraq. It cites a similar case,7 in which the Committee did not consider that the

individual’s prospective removal to Iraq would violate article 3 of the Convention, in the

absence of additional grounds beyond the problematic country conditions to show that that

individual would be personally at risk. The report of the United Nations Assistance Mission

to Iraq referred to by the complainant only mentions high-ranking military personnel and

air force members as targets of extra-judicial killings. The complainant himself did not

have the profile of someone who would be personally at risk in Iraq. Furthermore, he had

6 The State party refers to CAT, General Comment No. 1: Implementation of article 3 of the

Convention in the context of article 22 (1997), at paras. 6–8; Communication No. 36/1995, X. v. The

Netherlands, at para. 7.2.

7 Communication No. 286/2006, M.R.A. v. Sweden, passim.

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not shown that he would be at risk in all parts of the country. The mere fact that he might

not be able to return to his hometown does not as such amount to torture.8 Lastly, it was

unclear whether the complainant feared torture from State or non-State agents or both.

Complainant’s comments

6.1

On 30 May 2007, counsel informed the Committee that the complainant had not

been in contact with him since 31 October 2006. On the issue of exhaustion of domestic

remedies, he submits that he cannot comment on the domestic proceedings relating to the

complainant’s refugee claim, humanitarian and compassionate application, spousal

sponsorship and PRRA application, as he only represented him in the proceedings

concerning the deferral and stay of his removal. After the Federal Court had refused to

entertain the complainant’s motion, and no order staying removal had been granted, “there

was no rationale for continuing the application in the Federal Court […],” and no other

remedy was available to him. No further explanations on exhaustion of domestic remedies

and their availability or effectiveness are offered.

6.2

Counsel submits that it was common knowledge that hundreds of thousands of Iraqis

have fled Iraq, “and that the breakdown of civilized life in Iraq is accompanied by horrific

violence from not just foreign soldiers, Iraqi police and outside armed men, but from Iraqi

privately armed groups and individuals.” Moreover, the situation in Iraq had deteriorated

since the complainant’s PRRA in 2004.

6.3

Counsel rejects the State party’s argument that “instability in Iraq affects all Iraqis

and all persons present in Iraq, and is not personal to the [complainant]” and that “the

pervasive violence and instability in Iraq are not, in and of themselves, sufficient to

substantiate the [complainant’s] allegation that he would face a foreseeable, real and

personal risk of torture upon being returned to Iraq”. If everyone present in Iraq was

affected by such pervasive violence and instability, no person should be returned to that

country. Moreover, if violence was pervasive, “it is being experienced in every part of the

country.”

6.4

Given the complainant’s past employment in the armed forces of Saddam Hussein,

his risk was arguably higher than that of someone unrelated to the former regime. In light of

the serious human rights situation in Iraq, any person previously associated with Saddam

Hussein would be at substantial risk if returned to Iraq, including the complainant.

State party’s additional observations

7.1

On 24 September 2007, the State party reiterated that the complaint is inadmissible

because of non-exhaustion of domestic remedies and because it is manifestly unfounded,

and in any event without merit. The fact that the complainant’s previous counsel failed to

advise him to apply for leave to apply for judicial review with respect to the humanitarian

and compassionate decision of 28 June 1999 and the PRRA decision of 21 January 2005

did not absolve him from the requirement to exhaust domestic remedies, as errors

committed by his privately retained lawyer cannot be attributed to the State party.

7.2

By reference to a decision of the Human Rights Committee9 that failure to pursue a

leave application with due diligence rendered a communication inadmissible, the State

party challenges counsel’s argument that “there was no rationale for continuing the

8 The State party refers to Communication No. 183/2001, B.S.S. v. Canada, at para. 11.5;

Communication No. 245/2006, S.S.S. v. Canada, at para. 8.5.

9 Human Rights Committee, Communication No. 982/2001, J.S.B. v. Canada, at para. 7.3.

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application” after the Federal Court had dismissed the complainant’s motion to stay his

removal.

7.3

The State party recalls that counsel misconstrues the requirement for a complainant

to establish that he is at personal risk of torture, by arguing that everyone in Iraq, including

the complainant, is at risk of torture, since the human rights situation is so poor in Iraq. The

Committee’s jurisprudence10 and General Comment on article 3 established that poor

country conditions are not, in and of themselves, sufficient to substantiate the allegation

that a complainant would face a foreseeable, real and personal risk of torture upon return to

his or her country of origin.

Complainant’s additional comments

8.

On 1 October 2008, counsel informed the Committee that he had contacted the

complainant through a relative, since the complainant was still hiding and did not want to

disclose his whereabouts. The complainant was depressed; his former Canadian wife had

divorced him. His mother and sister had left Iraq for Egypt and were afraid to return. His

only brother who had stayed in Iraq was assassinated on 3 February 2008 because of his

Sunni adherence and name. The complainant therefore had no siblings or parents remaining

in Iraq.

Issues and proceedings before the Committee

9.1

Before considering any claim contained in a communication, the Committee against

Torture 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.

9.2

In accordance with article 22, paragraph 5 (b), of the Convention, the Committee

does not consider any complaint, unless it has ascertained that the complainant has

exhausted all available domestic remedies; this rule does not apply where it has been

established that the application of those remedies has been unreasonably prolonged, or that

it is unlikely, after a fair trial, to bring effective relief to the alleged victim.

9.3

The Committee takes note of the State party’s argument that the complaint should be

declared inadmissible under article 22, paragraph 5 (b), of the Convention, as the

complainant failed to apply for leave to apply for judicial review of the decision dated 28

June 1999 on his humanitarian and compassionate application and of the PRRA decision

dated 21 January 2005, as well as to submit the required documents to complete his

application for leave with regard to the decision dated 30 October 2006 refusing to defer his

removal. It also notes that the complainant does not challenge the effectiveness of the

remedy of judicial review, although he had an opportunity to do so. In this regard, the

Committee recalls that when judicial review is granted by the Federal Court in cases

concerning pre-removal risk assessment or humanitarian and compassionate decisions by

Citizenship and Immigration Canada, the Federal Court refers the matter back to a different

immigration officer of the same decision-making body.11 However, the Committee also

observes that this does not imply that applications for leave or for judicial review are mere

formalities that, as a general rule, need not be exhausted by a complainant for purposes of

article 22, paragraph 5 (b), of the Convention.12 Rather, the Federal Court may, in

10 The State party refers to Communication No. 286/2006, M.R.A. v. Sweden, passim; Communication

No. 282/2005, S.P.A. v. Canada, at para. 7.7.

11 See Communication No. 133/1999, Falcon Ríos v. Canada, at para. 7.3.

12 See Communication No. 273/2005, T.A. v. Canada, at para. 6.3.

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appropriate cases, look at the substance of a case.13 It may in this context indicate the

reasons for which it remits a case back to the body which took the original decision and for

which it deems that said decision needs to be reconsidered.14 The Committee recalls that,

while according to its jurisprudence an appeal against a negative decision on a humanitarian

and compassionate application is not a remedy that needs to be exhausted,15 the

complainant failed to diligently exhaust remedies with respect to two other negative

decisions. In the present case, the Committee does not consider that applications for leave

to apply for judicial review of the PRRA and humanitarian and compassionate decisions

would have been ineffective remedies in the complainant’s case, in the absence of any

particular circumstances adduced by him in support of such an assumption.

9.4

As regards the complainant’s explanation that he did not file an application for leave

to apply for judicial review of the PRRA decision of 21 January 2005 because his then

lawyer had advised him that domestic remedies were exhausted, the Committee notes that

the complainant has not argued that he was represented by a State-appointed lawyer at the

relevant time. It recalls that errors made by a privately retained lawyer cannot normally be

attributed to the State party,16 and concludes that the complainant has failed to advance

sufficient elements which would justify his failure to avail himself of the possibility to

apply for judicial review of his PRRA decision, or of the humanitarian and compassionate

decision of 28 June 1999. Nor has he provided reasons for his failure to complete his

application for leave to apply for judicial review of the decision of 30 October 2006 on his

request to defer his removal.

9.5

The Committee is therefore of the view that domestic remedies have not been

exhausted in accordance with article 22, paragraph 5 (b), of the Convention.

10.

Accordingly, the Committee decides:

(a)

That the communication is inadmissible;

(b)

That this decision shall be communicated to the State party and to the

complainant.

[Adopted in English, French, Russian and Spanish, the English text being the original

version. Subsequently to be issued also in Arabic and Chinese as part of the Committee's

annual report to the General Assembly.]

13 Ibid.

14 See, e.g., Communication No. 183/2001, B.S.S. v. Canada, at para. 11.6.

15 Falcon Ríos v. Canada, loc. cit.; Communication No. 232/2003, Mabrouki v. Canada, at para. 6.3.

16 Communication No. 284/2006, R.S.A.N. v. Canada, at para. 6.4.