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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. [FN1]
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[FN1] 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).
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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 [FN2] and considers that judicial review
provides a sufficiently effective remedy in asylum cases.
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[FN2] See Vilvarajah and Others v. United Kingdom, 14 E.H.R.R. 218 (30
October 1991).
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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.[FN3]
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[FN3] See Bahaddar v. The Netherlands, No. 145/1996/764/965 (19 February
1998).
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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. [FN4] This option was available to the author
prior to the deportation and there was no time limit for submitting it.
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[FN4] X v. Sweden, communication No. 64/1997 (19 November 1997).
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4.10 The State party deems that the above-mentioned remedies are effective
in the sense of article 22 [FN5] 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.
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[FN5] Views, communication No. 34/1995, CAT/C/18/D/34/1995, 9 May 1997.
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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".[FN6]
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[FN6] Supra, note 3.
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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 [FN7] 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.
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[FN7] 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.).
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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.
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