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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 24 November 2004,
Adopts the following:
Decision of the Committee Against Torture
Under Article 22 of the Convention
1.1 The complainants are Heli Arfahad Saut Villamar, born in 1973, and his
wife, Flor Osorio Cancino, born in 1975, both Mexican nationals. They
applied for asylum on 28 May 1999, five months after arriving in Canada.
Their requests were rejected by the Canadian Immigration and Refugee Board
on 6 January 2000. The Federal Court of Canada confirmed this decision on 26
May 2000. The complainants claim that their forced return to Mexico would
constitute a violation by Canada of article 3 of the Convention.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the attention of the State party on 27
April 2000. At the same time, acting under rule 108 of its rules of
procedure, the Committee requested the State party not to expel the
complainants to Mexico while their complaint was being considered.
1.3 As it transpired from the State party's submission dated 30 July 2003,
the complainants' asylum requests were rejected on 6 January 2000. They left
Canada on 18 July 2000 after a removal order was issued against them. [FN1]
Ms. Cancino returned to Canada on 8 December 2000 with a work permit. Mr.
Saut Villamar returned to Canada on 9 December 2000, without a residence
permit; he did not apply for refugee status and accordingly was sent back to
Mexico the following day. He returned to Canada on 24 October 2001 and
applied for refugee status on new grounds (different from those submitted
for in the present communication). On 7 February 2003, the Refugee
Determination Division found that he lacked credibility owing to serious
contradictions in his statements, and refused to grant him refugee status.
The applicant did not appeal against this decision. [FN2]
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[FN1] The exact date of the order is not provided.
[FN2] The State party declares however that Mr. Saut Villamar will not be
deported from Canada without having had an opportunity to request an
assessment of the risks involved in returning to his country.
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The Facts as Submitted by the Complainants
2.1 In November 1997, the complainants went to live in Tuxla, Las Rosas,
Chiapas State, with Ms. Osorio Cancino's uncle, Oscar Cancinos, who gave
them work in the shop he ran. Ms. Osorio Cancino worked at the sales
counter, while Mr. Saut Villamar worked as a driver. Oscar Cancinos turned
the management of the business over to them after their marriage, on 19
February 1998.
2.2 Oscar Cancinos left the business on 15 March 1998 and went to the
capital, but asked the couple to pay him 15 per cent of each month's
profits, saying that he would come and collect the money in person. The
couple took care of the business, but the wife noticed that certain
individuals in plain clothes were watching them. Fearing that they might be
thieves, the couple requested their staff not to keep large amounts of money
in the till, and the husband lodged a complaint with the police.
2.3 On 20 September 1998, Oscar Cancinos returned with some unknown men, who
were armed. The wife, who was on her own, told him that her husband had gone
out shopping and would be back soon. Oscar Cancinos told the strangers to
wait, because the husband was the only one who knew where the money was.
When the husband arrived, one of the men pointed a gun at him and ordered
him out, whereupon Oscar Cancinos struck the man's hand that was holding the
gun. When the man dropped the gun, Oscar Cancinos seized the opportunity to
run into the house with the other two strangers in pursuit. He managed to
escape. The men then turned on the complainants: one of them pointed his gun
at Ms. Osorio Cancino, while the others are reported to have dealt with Mr.
Saut Villamar. Ms. Osorio Cancino managed to escape, leaving her husband
with the strangers.
2.4 Ms. Osorio Cancino went to the home of another uncle, who immediately
set off to look for her husband. On his return, he said that he had found
him unconscious in front of the shop and that he appeared to have been
beaten up. He took him to a hospital to be treated and then lodged a
complaint with the police. The police, however, allegedly told him that
Oscar Cancinos was a member of the Zapatista Army and that the complainants
were his accomplices.
2.5 The complainants took refuge in Mexico City, where they were hidden by
the husband's family. They claim there are rumours that their uncle went
back to join the Zapatistas in the mountains.
2.6 The complainants left Mexico on 12 December 1998 and arrived in Canada
the same day. They applied for refugee status on 28 May 1999. On 6 January
2000, the Convention Refugee Determination Division of the Canadian
Immigration and Refugee Board found that the complainants were not "refugees
within the meaning of the Convention". After the hearing, the complainant
Ms. Osorio Cancino was found to lack credibility, while her husband did not
make a statement because of memory problems ostensibly arising from the
incidents described above. The complainants then decided to request leave to
apply for a judicial review of the decision of the Refugee Determination
Division. On 26 May 2000, the Federal Court of Canada denied the request. On
9 December 2000, the complainant Mr. Saut Villamar returned to Canada
without a residence permit. He did not apply for refugee status and
accordingly was sent back to Mexico the following day.
The Complaint
3.1 The complainants maintain that their removal to Mexico would constitute
a violation by Canada of article 3 of the Convention. They claim that their
rights were seriously violated in Mexico and believe that they would be
persecuted again if they returned there.
3.2 In support of these allegations, Mr. Saut Villamar submits a medical
certificate stating that he would not be competent to testify on his own
behalf to the Refugee Determination Division. According to the certificate,
this complainant has no memory of the assault he suffered in Mexico or of
his life prior to the assault. He is incapable of recognizing familiar
faces, and a psychologist has recommended that his wife should represent him
in his application.
The State Party's Submission on Admissibility
4.1 In a note verbale dated 30 July 2003, the State party maintains that, in
respect of the complainant Ms. Osorio Cancino, the communication is
inconsistent with article 22, paragraph 5, of the Convention, since she had
legal temporary worker status in Canada.
4.2 The State party contends that the communication does not present the
minimum grounds requested in support of the complainants' allegation that
their return to Mexico would constitute a violation of article 3 of the
Convention. The facts and allegations presented to the Committee are said to
be identical as those submitted to the national authorities. These
authorities concluded that these facts and allegations were incoherent and
revealed the existence of significant gaps in relation to essential and
determinant aspects of the complainants' contentions, in particular with
regard to their stay in Chiapas and the identity of Mr. Villamar's
aggressors. Invoking a loss of memory, he refused to testify before the
Immigration and Refugee Board.
4.3 The State party further asserts that the communication is inadmissible
since the complainants did not exhaust the available domestic remedies
before applying to the Committee. They did not apply for exemption from the
normal application of the Immigration Act on humanitarian grounds. [FN3]
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[FN3] Article 114 (2) of the Immigration Act, 1976: "The Governor in Council
may, by regulation, authorize the Minister to exempt any person from any
regulation made under subsection (1) or otherwise facilitate the admission
of any person ... owing to the existence of ... humanitarian
considerations."
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4.4 According to the State party, the determination of humanitarian
considerations is a statutory administrative procedure by which the
complainants could have submitted new facts or new evidence in their favour
to an immigration official. In such a submission, the complainants could
have referred to any personal circumstances of a humanitarian nature, not
only to the risks involved in their removal to Mexico. Had their application
been turned down, the complainants could have requested leave to apply for
judicial review of the decision. For the Federal Court to grant leave, they
would only have needed to show that they had a "fairly arguable case" that
would warrant remedial action if the request were granted. [FN4]
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[FN4] The Federal Court may intervene if it is satisfied that an
administrative body has made an error of jurisdiction; erred in law in
making a decision or an order, whether or not the error appears on the face
of the record; based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without regard for the
material before it; or acted in any other way that was contrary to law.
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4.5 The State party argues that the complainants could have applied to the
Federal Court for a stay of removal until completion of the judicial review
process. This decision can in turn be appealed before the Federal Court of
Appeal if the lower court judge certifies that a serious question of general
importance is involved and states that question. The Federal Court of Appeal
ruling may be appealed in the Supreme Court of Canada.
4.6 The State party further argues that an application for permanent
residence in Canada based on the existence of humanitarian considerations is
another remedy that might have brought relief to the complainants.
4.7 The State party recalls that, in L.O. v. Canada, [FN5] the Committee
found the communication inadmissible because the complainant had not made
such an application on humanitarian grounds and had thus not exhausted
domestic remedies.
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[FN5] L.O. v. Canada, communication No. 95/1997; Views adopted on 5
September 2000.
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4.8 In the case of the complainant Mr. Saut Villamar, the State party notes,
with regard to his second asylum request, that he did not request leave to
apply for judicial review of the negative decision of the Refugee
Determination Division. This remedy is still available to the complainant,
even though the 15-day period established by the Immigration and Refugee
Protection Act for the filing of such an application has in fact elapsed. If
the complainant can demonstrate that there were special reasons for the
delay in filing, a Federal Court judge may allow an extension of the
deadline. The State party points out, however, that the complainant had an
obligation to observe the time limits, and cites a European Court of Human
Rights case [FN6] in which the Court found that, even in cases of removal to
a country where there might be a risk of treatment contrary to article 3 of
the European Convention on Human Rights, the formalities and time limits
established in domestic law must be observed. That complaint had been
rejected on grounds of non-exhaustion of domestic remedies.
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[FN6] Bahaddar v. Netherlands, communication No. 145/1996/764/965.
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4.9 The State party notes that in R.K. v. Canada [FN7] the Committee found
that the complainant had not exhausted domestic remedies if he had not
pursued a request for judicial review of a negative decision by the Refugee
Determination Division and had not lodged a request for a ministerial
waiver. In P.S. v. Canada [FN8] the Committee had found the communication
inadmissible on the grounds that the complainant had not applied for
judicial review of a decision denying his request for a ministerial waiver.
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[FN7] R.K. v. Canada, communication No. 47/1996.
[FN8] P.S. v. Canada, communication No. 86/1997.
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4.10 According to the State party, Mr. Saut Villamar will not be deported
from Canada without having had an opportunity to request an assessment of
the risks involved in returning to his country. The Immigration and Refugee
Protection Act provides that persons in Canada may apply for protection if
they are subject to a removal order and fear that their removal would expose
them to the risk of persecution on one of the grounds established in the
Convention relating to the Status of Refugees or to the risk of being
subjected to torture within the meaning of article 1 of the Convention
against Torture, or would put their life at risk or expose them to the risk
of cruel treatment. In the event of a negative decision regarding the
pre-removal risk assessment, an application for judicial review may be made
to the Federal Court.
4.11 Lastly, the State party argues that the complainant may apply for
permanent residence on humanitarian grounds.
4.12 As to the complainant Ms. Osorio Cancino, the State party emphasizes
that she had temporary worker status in Canada until 8 December 2003. After
that date she could apply for refugee status if she was afraid to return to
Mexico, and if a removal order was issued against her she could apply for
pre-removal risk assessment. She could also apply for permanent residence
under the Live-in Caregiver Programme. Lastly, she could apply for permanent
residence in Canada on the basis of humanitarian considerations. In each
case, the decision would be subject to judicial review.
4.13 The State party maintains that the complainants have not exhausted the
domestic remedies available to them and have not demonstrated that such
remedies would be unreasonably prolonged or unlikely to bring effective
relief. The complaint should therefore be found inadmissible.
The Author's Comments on the State Party's Submission
5.1 The State party's observations were transmitted to the complainants for
comment on 19 August 2003. A reminder was sent on 2 October 2003, but no
response has been received.
Issues and Proceedings Before the Committee
6.1 Before considering any of the allegations in a communication, the
Committee against Torture must decide whether or not the communication is
admissible under article 22 of the Convention. The Committee has ascertained
that the same matter has not been and is not being examined under another
procedure of international investigation or settlement.
6.2 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, after a
fair trial, to bring effective relief to the alleged victim.
6.3 The Committee has noted the State party's explanation made on 30 July
2003 that the complainants left the State party on 18 July 2000, in
compliance with a removal order against them. The Committee is deeply
concerned by the fact that the State party did not accede to the Committee's
request under rule 108 of its rules of procedure to the effect that it
should refrain from expelling the authors while their communication was
being considered by the Committee, and thereby failed to comply with the
spirit of the Convention. The Committee reiterates that the State party, by
ratifying the Convention and voluntarily accepting the Committee's
competence under article 22, undertook to cooperate with it in good faith in
applying the procedure. Compliance with interim measures called for by the
Committee is essential in order to protect the person in question from
irreparable harm, which could, moreover, nullify the end result of the
proceedings before the Committee. The State party is invited to comply, in
future, with the Committee's requests for interim measures of protection.
[FN9]
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[FN9] See T.P.S v. Canada, Communication No. 099/1997, paragraph 15.6, and
Cecilia Rosana Núñez Chipana v. Venezuela, Communication No. 110/1998.
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6.4 Meanwhile, the State party has indicated that subsequent to their
expulsion in July 2000, the authors returned in Canada - the complaint's
wife in December 2000, with a valid work permit, and the complainant in
October 2001, after seeking asylum on grounds that differ from the
allegations that are in the present communication. In the light of the
above, and in absence of any observations from the complainants on the State
party's submission or any further information (on their current situation),
the Committee considers that the complainants have failed to sufficiently
substantiate their claim for purposes of admissibility. Therefore, it
considers that the communication is manifestly unfounded.
7. The Committee consequently decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the authors of the
communication and to the State party.
[Adopted in English, French, Russian and Spanish, the French 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.]
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