against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 20 November 1997,
Adopts the following decision:
Decision on admissibility
1. The author of the communication is Mr. Richard Kollo, a Liberian citizen
belonging to the Krahn ethnic group, born on 30 November 1967, currently
residing in Canada. He claims that his return to Liberia would constitute a
violation of article 3 of the Convention against Torture by Canada. He is
represented by counsel.
2.1 The author states that his uncle, who raised him following the death of
his father when he was two years old, was politically active; he was a
member of the United Liberation Movement of Liberia (ULIMO). In 1985,
members of the Krahn community who supported a certain political candidate
were accused of electoral fraud. Opposing the Krahn and in response to the
alleged fraud, another political party was founded in 1987: the National
Patriotic Front of Liberia (NPFL).
2.2 The author states that in 1990, his uncle was murdered by (military)
members of the NPFL. They also detained the author's cousin. After these
events, the author decided to seek refuge in the Red Cross office. He paid
someone to help him to go to Sierra Leone; he crossed the border with five
other persons. In Sierra Leone, the author hid in an ULIMO office.
2.3 One night, soldiers from the NPFL were searching for ULIMO members and
the author fled to Israel using his Liberian passport. During his stay in
Israel, someone stole his luggage and documents.
2.4 The owner of the place where he was staying helped him to flee to
Canada, where he arrived on 8 February 1993. On 26 February 1994, the author
married a Canadian woman; a child was born on 19 April 1995.
2.5 Immediately after arriving in Canada, the author requested political
asylum. On 20 April 1994, his application was dismissed by the Immigration
and Refugee Board of Canada. The author applied to the Federal Court of
Canada for leave to appeal against the Board's decision. The Court rejected
his request. On 15 December 1995, a request lodged by the applicant in
pursuance of the post-claim risk assessment process was rejected. The author
was told to leave the country before 22 February 1996.
2.6 It further appears from the communication that the author's wife is
sponsoring his application for immigration to Canada. On 20 December 1995,
the immigration authorities rejected the author's request for his expulsion
to be suspended pending the outcome of the procedure for examination of the
immigration application, which was already under way. The author complains
that the Canadian authorities refuse to accept the bona fide character of
his marriage. Immigration officials are said to have consistently refused to
grant his wife an interview to prove the validity of the marriage.
3.1 According to the author, if he returns to Liberia he will be killed like
his uncle. To substantiate his statements concerning the serious human
rights violations occurring in Liberia, where several factions are
confronting one another, the author quotes several extracts from a report by
Amnesty International, as well as Country Reports on Human Rights Practices
3.2 The author claims that his return to Liberia would constitute a
violation of article 3 of the Convention against Torture by Canada. He
requests the Committee to ask Canada not to expel him while his
communication is under consideration by the Committee.
Comments of the State Party
4. On 19 March 1996, the Committee forwarded the communication to the State
party through its Special Rapporteur to enable it to draw up its comments,
and requested it not to expel the author while his communication was under
consideration by the Committee; the request was granted.
5.1 In a note dated 9 September 1996, the State party contests the
admissibility of the communication. It points out that the author had not
exhausted the domestic remedies available before submitting his
communication to the Committee against Torture. In addition, his
communication did not demonstrate the minimum justification needed to meet
the requirements of article 22 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
5.2 The State party explains that throughout the Canadian immigration
process, the author essentially advanced the same allegations as those he is
putting forward in support of his communication to the Committee against
Torture. He claimed that his uncle had been a member of ULIMO and had been
killed by the NPFL, an armed faction which opposed it, on account of his
political activities. The author claimed that, because of his relationship
with his uncle, his life or his safety would be in danger if he returned to
Liberia. Specifically, he feared that he would be tortured.
5.3 The State party points out that the investigations carried out by the
Canadian authorities revealed major gaps concerning fundamental and crucial
aspects of the author's claims. It was impossible to establish that he was
of Liberian origin and that his return to Liberia would entail genuine risks
for his life or his safety. Inconsistencies in his statements seriously
undermined his credibility and compounded an absence of objective proof of
5.4 The State party holds that various domestic remedies were open to the
author to challenge the conclusions of the Canadian authorities. Those
remedies, had he availed himself of them, would have enabled him to
demonstrate as far as possible that the inconsistencies noted in his
statements were merely apparent, and that his claims were backed up by a
rational explanation of which those responsible for taking a decision on his
case were unaware. Yet he had not maintained and pursued a request for
judicial review by the Federal Court, and he had not made a request for
judicial review by the Federal Court of two other decisions taken by the
Canadian authorities. Nor had he made any request for a ministerial waiver
on humanitarian grounds.
5.5 The remedies, had the author pursued them, might have brought him relief
within a reasonable time limit. All of them offered him a chance to correct
and explain the gaps in his dossier before the date of application of the
expulsion measure against him, and the remedies ultimately held out the
possibility that he would be able to settle in Canada.
5.6 The State party claims that, because of Mr. Rollo's failure to pursue
those remedies before appealing to the Committee against Torture, his
communication fails to satisfy the condition set out in article 22,
paragraph 5 (b) of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. It calls on the Committee to declare
the communication inadmissible.
6.1 In his reply, dated 20 February 1997, counsel describes as speculation
the State party's comments that, had he availed himself of the remedies
referred to, the author would have had an opportunity to demonstrate that
the Government was mistaken and to win his case.
6.2 He expresses surprise that the State party should argue that the author
had not exhausted all remedies, when the Government itself had summoned him
to the local immigration office to tell him to arrange for his departure. On
that occasion, an immigration official confirmed to the author that he must
report for expulsion to Liberia. Since that confirmation had been given by
an immigration official responsible for expulsions, the author was in no
doubt that his deportation to Liberia was imminent, and that it was to take
place shortly after the first summons. Indeed, if it had not been for the
appeal lodged by the author with the Committee against Torture, arrangements
would have been made and the author would already have been deported to
Liberia without further delay. There is no doubt in the applicant's mind -
indeed, Canada's machinations in that regard were quite clear - that the
department responsible for expulsions was preparing to deport him.
6.3 It is submitted that the Canadian Government had every opportunity to
remedy its failure to meet its international obligations but that its bad
faith and totally negative attitude to the author's dossier was illustrative
of its lack of will to assist him. In that regard, counsel draws attention
to the fact that the author had first exhausted all the refugee status
determination procedures, and that he had been given a negative response.
Moreover, the Canadian Government itself admits that many applicants in the
same circumstances as the author and from the same country are granted
6.4 Regarding the request made to the Federal Court for judicial review,
counsel explains that lodging such a request in no way guarantees success,
as a very small percentage of such requests are granted. Moreover, even if
in theory applicants have only to show that they have a "fairly arguable
case", leave to appeal is granted in fewer and fewer cases. In principle,
that makes the appeal procedure in question an illusion for the vast
majority of refugees, including the author.
6.5 In any event, since the applicant was married, he had been advised to
lodge a request for sponsorship on grounds of marriage, which in view of his
circumstances had a good chance of success; but the request had not been
6.6 Regarding the State party's claims that the author had an alleged right
to appeal to the Federal Court, counsel states that in actual fact such
appeals are non-existent, time-barred or totally ineffective and illusory,
since they are inaccessible and discretionary and in no way prevent the
Canadian Government from going ahead with the deportation of the author in
6.7 Counsel points out that the Canadian Government is very well aware that
access to such procedures is almost never granted in practice, and that in
any event they do not prevent the Canadian Government from proceeding with
Issues and Proceedings Before the Committee
7.1 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention.
7.2 In accordance with article 22, paragraph 5 (b) of the Convention, the
Committee does not consider any communication unless it has ascertained that
the author has exhausted all available domestic remedies; this rule does not
apply where it has been established that the application of the remedies has
been or would be unreasonably prolonged or that it is unlikely to bring
effective relief to the alleged victim. In the present case, the author
acknowledges that he has not pursued a request for judicial review by the
Federal Court and has not lodged a request for a ministerial waiver on
humanitarian grounds. Even if the author claims that these remedies would be
illusory, he has furnished no evidence that they would be unlikely to
succeed. The Committee notes that the conditions laid down in article 22,
paragraph 5 (b), of the Convention have not been met.
8. The Committee consequently decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the author of the
communication and to the State party.
[Done in English, French, Spanish and Russian, the French text being the