|
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 2006,
Having concluded its consideration of complaint No. 273/2005, submitted to
the Committee against Torture on behalf of Thu AUNG 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
complainant, his counsel and the State party,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant is Mr. Thu AUNG, a Burmese national born on 8 January
1978 in Yangon, Myanmar, and currently residing in Canada, from where he
faces deportation. He claims that his forcible return to Myanmar would
constitute a violation by Canada of articles 3 and 16 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment. 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 15 July 2005,
and requested it, under Rule 108, paragraph 1 of the Committee's rules of
procedure, not to expel the complainant to Myanmar while his complaint is
under consideration by the Committee. The request was made on the basis of
the information contained in the complainant's submission and could be
reviewed at the request of the State party in light of information and
comments from the State party and the complainant.
1.3 By submission of 21 December 2005, the State Party requested that the
admissibility of the complaint be examined separately from the merits. On 26
January 2006, the Special Rapporteur on New Communications and Interim
Measures granted the State party's request, pursuant to Rule 109, paragraph
3 of the Committee's Rules of Procedure.
The Facts as Presented by the Complainant:
2.1 The complainant was involved in student demonstrations while attending
the University of Hlaing, Myanmar, in 1998. In November 1998 he was involved
in a demonstration where he was detained and questioned. In detention, the
complainant alleges that the police made him sign a document stating that if
he was caught in anti-government activities again, he would be detained
indefinitely. After his release, he was interrogated on several occasions
and he knew that the government was monitoring his activities. In 2001 the
complainant distributed documents relating to human rights abuses, although
he did not belong to a democracy organization. He was not caught
distributing these documents. In 2001 a friend of the complainant founded a
soccer (football) association ('union') and asked him to join. The
complainant agreed and recruited more members to play soccer. At the time in
Myanmar such associations or unions were not allowed.
2.2 In January 2002 the complainant was granted a visa to study English at
the Global Village School in Vancouver, Canada. He arrived in Canada on 14
December 2002, on a student visa.
2.3 In February 2003 he applied for refugee status after his mother had
informed him that the Government of Myanmar was looking for him for
distributing anti-government literature. She told him that the authorities
had detained his father and interrogated him about the complainant's
activities. His mother also told him that one of his friends had been
arrested.
2.4 The complainant's application for refugee status was dismissed on 25
September 2003. Counsel explains that the complainant did not highlight that
he was a member of a soccer 'union' at the time of his application for
refugee status, as he thought that 'relevant organizations' for the purposes
of the application meant political organizations, not sporting
organizations. He did not consider at the time that he was at risk for his
involvement in the soccer 'union', and only learned of a warrant for his
arrest based on his involvement in the soccer 'union' at a later stage. On
20 July 2004 the complainant made submissions under the pre-removal risk
assessment (PRRA) procedure, including new evidence in the form of a letter
from his father and a copy of the warrant for his arrest dated 29 December
2003. The PRRA was denied on 17 September 2004. At the hearing on 29
September 2004 the complainant was advised to return by 7 October 2004 with
an itinerary to return to Myanmar. He was scheduled to leave Canada on 26
October 2004.
2.5 The complainant applied for leave and judicial review of the PRRA
decision before the Federal Court of Canada on 14 October 2004, which was
due to be heard on 25 October 2004. In the meantime, on 22 October 2004 a
consent agreement was reached between the complainant and the Minister of
Citizenship and Immigration. As part of the agreement, the complainant was
required to provide new PRRA submissions by 5 November 2004, which was
extended to 26 November 2004, while a stay of deportation was granted on 22
October 2004. The second PRRA was denied on 8 June 2005. The complainant was
advised that he was to complete his departure requirements on 18 June 2005.
An application for leave and judicial review of this PRRA decision was filed
at the Federal Court on 30 June 2005. A motion to stay the removal was filed
in the Federal Court on 8 July 2005. In the meantime, the complainant was
notified by the Canada Border Services Agency that a travel document to
Myanmar had been obtained on his behalf, and that he was scheduled to be
deported on 18 July 2005. [FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] The State party subsequently informed the Committee that the removal
order had not been enforced.
---------------------------------------------------------------------------------------------------------------------
2.6 On 15 July 2005 the Federal Court granted the stay of execution of the
removal order, on the basis that the officer who performed the complainant's
PRRA assessment had attributed little weight to the arrest warrant and had
not clearly indicated whether the warrant was genuine or not.
2.7 In light of this finding, on 3 August 2005 the Special Rapporteur on new
communications and interim measures of the Committee lifted the provisional
interim measures previously issued by the Committee.
The Complaint:
3.1 The complainant argues that he would be at risk of arbitrary arrest,
beatings and torture if he were returned to Myanmar, where human rights
violations within the meaning of article 3, paragraph 2, of the Convention
are said to be frequent.
3.2 Counsel refers to the U.S. Department of State Report for Burma (2004)
and its reports of the human rights violations in Myanmar, including the
fact that in January 2004 seven students who had formed an illegal football
'union' were given sentences ranging from seven to fifteens years
imprisonment. Counsel also provides reports from non-governmental sources
containing information on the human rights situation in Myanmar, and that
those suspected of pro-democratic political activity are killed, arrested
and detained without trial. Counsel refers to evidence from a medical
training program manager at the International Rescue Committee confirming
that the Burmese government regularly detains those deportees that it
believes left Myanmar for political reasons.
3.3 The complainant highlights that he has been active in pro-democratic
Burmese groups since his arrival in Canada. Specifically, he is involved in
the Action Committee for Free Burma, is a supporter of the National League
for Democracy, the Burmese Children Fund as well as the Myanmar Heritage
Cultural Association. There is currently a warrant out for his arrest in
Myanmar for his involvement with the soccer 'union'. In addition, the
complainant argues that the fact the Canadian authorities have applied for,
and received, a passport on his behalf has alerted the Myanmar authorities.
State Party's Observations on Admissibility:
4.1 On 21 December 2005, the State party contested the admissibility of the
communication on two grounds. Firstly, it argues that the complainant has
not exhausted domestic remedies. On 26 October 2005 the Federal Court
granted the complainant's application for leave to apply for judicial review
of the decision on his pre-removal risk assessment (PRRA). The hearing on
the application for judicial review was scheduled for 24 January 2006. If
his application is successful, the complainant will be entitled to a new
PRRA assessment. If the application is not successful, the decision of the
Federal Court can be appealed to the Federal Court of Appeal if the Federal
Court judge certifies that the case raises a serious question of general
importance, under section 74(d) of the Immigration and Refugee Protection
Act (IRPA). A decision of the Federal Court of Appeal can be appealed, with
leave, to the Supreme Court of Canada. Further, if the judicial review is
not successful, the complainant could also apply for a further PRRA on the
basis of any new evidence that may have arisen since the last determination,
although in that case he would not have the benefit of a statutory stay of
removal. However, he could apply for a judicial stay of removal pending the
disposition of that application. The State party refers to the jurisprudence
of the Committee to find that judicial review is widely and consistently
accepted to be an effective remedy [FN2].
---------------------------------------------------------------------------------------------------------------------
[FN2] The State party refers to, inter alia, Communication No. 183/2001
B.S.S. v. Canada, Views adopted on 12 May 2004, paragraph 11.6.
---------------------------------------------------------------------------------------------------------------------
4.2 In the view of the State party, the PRRA procedure is an effective
remedy which should be exhausted, contrary to the Committee's jurisprudence
[FN3]. The State party notes that during its examination the complainant
would not be removed. If successful, the complainant will become a protected
person and barring serious security concerns will be eligible to apply for
permanent resident status, and ultimately citizenship. It also considers
that the PRRA is more comprehensive than the 'post-determination refugee
claimants in Canada' risk assessment, which had been considered as an
effective remedy by the Human Rights Committee [FN4]. In the view of the
State party, the Committee's decision in Falcon Ríos was based on the
erroneous finding of fact that in the PRRA application in that case "it
would only be any fresh evidence that would be taken into consideration, and
otherwise the application would be rejected".[FN5] It is correct that
pursuant to section 113 (a) of the IRPA "an application whose claim to
refugee protection has been rejected may present only new evidence that
arose after the rejection or was not reasonably available, or that the
applicant could not reasonably have been expected in the circumstances to
have presented, at the time of the rejection". However, the State party
highlights that an exception has been read in by the Federal Court for those
applicants whose claims for refugee protection had been rejected prior to
the coming into force of the IRPA [FN6] . PRRA applications are considered
by specially trained officers, trained to consider provisions of the
Canadian Charter of Rights and Freedoms as well as of international human
rights treaties. Further, the State party submits, contrary to the
Committee's jurisprudence [FN7], that PRRA officers are independent and
impartial, referring to the jurisprudence of the Federal Court of Canada
[FN8] . Further, PRRA is said to be a remedy governed by statutory criteria
for protection, conducted pursuant to a highly regulated process and in
accordance with extensive and detailed guidelines. It is subject to judicial
review, and there is no authority for the proposition that a discretionary
remedy cannot be an effective remedy, for purposes of admissibility [FN9] .
---------------------------------------------------------------------------------------------------------------------
[FN3] The State party refers to Communications No. 133/1999, Falcon Ríos v.
Canada, Views adopted on 23 November 2004, paragraph 7.4 and No. 232/2003,
M.M. v. Canada, admissibility decision of 7 November 2005, paragraph 6.4.
[FN4] The State party refers to Communication No. 604/1994, Nartey v.
Canada, inadmissibility decision of 18 July 1997, paragraph 6.2;
Communication No. 603/1994, Badu v. Canada, inadmissibility decision of 18
July 1997, paragraph 6.2; Communication 654/1995, Adu v. Canada,
inadmissibility decision of 18 July 1997, paragraph 6.2.
[FN5] Communication No. 133/1999, Falcon Ríos v. Canada, Views adopted on 23
November 2004, paragraph 7.5.
[FN6] The State party refers to Nikolayeva v. Canada (Minister of
Citizenship and Immigration), [2003] 3 F.C. 708; Cortez v. Canada (Minister
of Citizenship and Immigration), 2003 FCT 725.
[FN7] The State party refers to Communication No. 232/2003, M.M. v. Canada,
admissibility decision of 7 November 2005, paragraph 6.4.
[FN8] Say v. Canada (Solicitor General), 2005, FC 739. The State party also
refers to numerous Canadian Federal Court cases.
[FN9] T.I. v. United Kingdom, App. No. 43844/98, Reports of Judgments and
Decisions, 2000-III; Communication No. 250/2004 A.H. v. Sweden,
inadmissibility decision of 15 November 2005. The State party also refers to
Communication No. 939/2000, Dupuy v. Canada, inadmissibility decision of 18
March 2005, paragraph 7.3 (HRC), concerning the effectiveness of judicial
review of an application for mercy to the Minister of Justice.
---------------------------------------------------------------------------------------------------------------------
4.3 Further, the complainant has not yet filed an application on the basis
of humanitarian and compassionate considerations, which the State party
maintains would also be an available and effective domestic remedy. The
assessment of a humanitarian and compassionate application, under section 25
of the IRPA, consists of a broad, discretionary review by an officer who
determines whether a person should be granted permanent residence in Canada
for humanitarian and compassionate reasons. The test is whether the person
would suffer unusual, underserved or disproportionate hardship if he had to
apply for a permanent resident visa from outside Canada. The assessing
officer considers all the relevant information, including the person's
written submissions. A humanitarian and compassionate application can be
based on allegations of risk, in which case the officer assesses the risk
the person may face in the country to which he would be returned. Included
in the assessment are considerations of the risk of being subjected to
unduly harsh or inhumane treatment, as well as current country conditions.
In the event that such an application is granted, the person receives
permanent residency subject to medical and security screening which can
eventually lead to Canadian citizenship.
4.4 For the State party, the humanitarian and compassionate consideration
application is also an effective remedy which should be exhausted, contrary
to the Committee's jurisprudence The State party refers, inter alia, to
Communication No. 133/1999, Falcon Ríos v. Canada, Views adopted on 23
November 2004, paragraph 7.3. [FN10] . The State party argues that the
simple fact that a remedy is discretionary does not necessarily mean that it
is not effective The State party refers to Communication No. 169/2000, G.S.B.
v. Canada, discontinued by letter of the Committee dated 25 November 2005,
in which a failed refugee's humanitarian and compassionate consideration
application was granted. [FN11] . It invokes a judgment of the European
Court of Human Rights in which the court determined that a discretionary
remedy available to unsuccessful refugee claimants in Germany to prevent
removal to a substantial risk of torture was adequate to fulfill Germany's
obligations under article 3 of the European Convention on Human Rights T.I.
v. United Kingdom, App. No. 43844/98, Reports of Judgments and Decisions,
2000-III, paragraph 460. [FN12] . Furthermore, while the decision adopted in
humanitarian and compassionate applications is technically discretionary, it
is in fact guided by defined standards and procedures and must be exercised
in a manner consistent with the Canadian Charter of Rights and Freedoms and
Canada's international obligations. In the event that the application is
refused, the person can make an application for leave to apply for judicial
review to the Federal Court on the standard of "reasonableness simpliciter",
which means that the 'discretion' is far from absolute.
---------------------------------------------------------------------------------------------------------------------
[FN10] The State party refers, inter alia, to Communication No. 133/1999,
Falcon Ríos v. Canada, Views adopted on 23 November 2004, paragraph 7.3.
[FN11] The State party refers to Communication No. 169/2000, G.S.B. v.
Canada, discontinued by letter of the Committee dated 25 November 2005, in
which a failed refugee's humanitarian and compassionate consideration
application was granted.
[FN12] T.I. v. United Kingdom, App. No. 43844/98, Reports of Judgments and
Decisions, 2000-III, paragraph 460.
---------------------------------------------------------------------------------------------------------------------
4.5 The State party challenges the Committee's reasoning in Falcon Ríos to
the effect "that the principle of exhaustion of domestic remedies requires
the petitioner to use remedies that are directly related to the risk of
torture in the country to which he would be sent, not those that might allow
him to stay where he is" [FN13] . The State party argues that article 3 of
the Convention obliges states not to expel, return or extradite a person to
another state where there are substantial grounds for believing that he
would be in danger of being subjected to torture. If an individual is
permitted to stay in Canada, it follows that he will not be returned to the
country where he alleges to be at risk. It should not matter on what grounds
a person is not removed.[FN14] The State party invokes the Committee's
decision in A.R. v. Sweden [FN15] where it was determined that an
application for a residence permit, which could be based on humanitarian
grounds but which could be decided on the grounds of a risk of torture was a
remedy required to be exhausted for the purposes of admissibility. The State
party argues that since a humanitarian and compassionate application may
also be based and approved on the ground of risk the person may face in the
country to which he would be returned, it meets the requirements set out by
the Committee.
---------------------------------------------------------------------------------------------------------------------
[FN13] Communication No. 133/1999, Falcon Ríos v. Canada, Views adopted on
23 November 2004, paragraph 7.4.
[FN14] The State party refers to T.I. v. United Kingdom (App. No. 43844/98,
Reports of Judgments and Decisions, 2000-III, paragraphs 458-459), where the
European Court of Human Rights was concerned with whether there were
"procedural safeguards of any kind" protecting the applicant from removal.
[FN15] Communication No. 170/2000, A.R. v. Sweden, inadmissibility decision
of 23 November 2001, paragraph 7.2.
---------------------------------------------------------------------------------------------------------------------
4.6 Secondly, since the complainant is not in immediate danger of removal,
the communication is also inadmissible under article 22, paragraph 2 of the
Convention and Rule 107 (c) of the Rules of Procedure, as incompatible with
article 3 of the Convention, and is manifestly unfounded under Rule 107 (b)
of the Rules of Procedure.
4.7 On 10 February 2006 the State party informed the Committee that the
author's judicial review application was granted on 27 January 2006. Pending
the completion of the new PRRA, the complainant will have the benefit of a
statutory stay of removal, and is therefore not presently at risk of removal
to Myanmar. Therefore, the communication is inadmissible on the basis of
non-exhaustion of domestic remedies.
Complainant's Comments:
5.1 On 12 February 2006 counsel commented on the State party's observations.
She notes that the complainant submitted his humanitarian and compassionate
application on 17 January 2006. Further, on 27 January 2006 the Federal
Court granted the judicial review and remitted the PRRA application to be
determined by a new officer. New PRRA submissions were due on 17 March 2006.
5.2 The complainant argues that the PRRA is not an effective remedy for
purposes of admissibility. [FN16] Although PRRA officers may be considered
to be specially trained, they are not experts when it comes to official
documents such as warrants or summons for arrests and do make erroneous
findings in such regard. The fact that, in the present case, such an error
occurred during the first PRRA is evidence that such findings are not an
effective remedy for those facing arrest in countries such as Myanmar. The
complainant further submits that although he is now subject to a new PRRA
assessment, he cannot be sure that the new PRRA officer will not make the
same erroneous finding in respect of the warrant and the risk. For this
reason, counsel argues that the Committee should declare the communication
admissible. In the alternative, should the Committee find that the
communication is inadmissible, the Committee should suspend its decision
until the new PRRA determination has been made.
---------------------------------------------------------------------------------------------------------------------
[FN16] Referring to Communication 232/2003, M.M. v. Canada, admissibility
decision of 7 November 2005.
---------------------------------------------------------------------------------------------------------------------
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 individual has exhausted all available domestic remedies; this rule does
not apply where it has been established that the application of the remedies
has been unreasonably prolonged, or that it is unlikely, after a fair trial,
to bring effective relief to the alleged victim.
6.3 The Committee takes note of the State party's contention that the
complaint should be declared inadmissible under article 22, paragraph 5 (b),
of the Convention since domestic remedies have not been exhausted, and since
the complainant was granted a stay of removal and is not currently at risk
of being deported. The Committee notes that the complainant's application
for refugee status was refused, that pursuant to the new IRPA he has already
completed two sets of PRRA procedures, and that he was granted a stay of
removal each time. The Committee also notes the State party's statement
that, when a refugee claim was rejected prior to the coming into force of
the new IRPA, an exception has been made by the Federal Court for similar
cases, which does not restrict PRRA submissions to new evidence that became
available after the rejection of the refugee claim. The Committee recalls
that the complainant subsequently applied for leave and judicial review of
the second PRRA decision. On 15 July 2005, the Federal Court of Canada
granted the stay of execution, on the grounds that the previous PRRA officer
had attributed little weight to the arrest warrant and had not clearly
indicated whether the warrant was genuine or not. Finally, on 27 January
2006 the Federal Court granted the judicial review and remitted the PRRA
application to be determined by a new officer. In the view of the Committee,
the decisions of the Federal Court support the contention that applications
for leave and judicial review are not mere formalities, but that the Federal
Court may, in appropriate cases, look at the substance of a case.
6.4 The Committee further notes that pursuant to section 232 of the IRPA
Regulations the complainant is not at risk of deportation during the ongoing
consideration of the new PRRA. It notes that the complainant has not
addressed the State party's arguments about the effectiveness or
availability of the PRRA, except to speculate that he cannot be sure that a
third PRRA officer will not make new erroneous findings about the arrest
warrant issued in Myanmar and the risks in that country. He has furnished no
evidence that it would be unreasonably prolonged or unlikely to bring
effective relief in his particular case. In light of this information, the
Committee is satisfied with the arguments of the State party that, in this
particular case, there was a remedy which was both available and effective,
and which the complainant has not exhausted. Further, as the complainant is
not presently at any risk of being deported, the Committee finds that the
conditions in article 22, paragraph 5 (b), of the Convention have not been
met.
6.5 In light of the foregoing, the Committee does not consider it necessary
to address the effectiveness and availability of the humanitarian and
compassionate ground application.
6.6 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.
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 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.]
|
|