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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 17 November 2006,
Having concluded its consideration of complaint No. 284/2006, submitted to
the Committee against Torture by R.S.A.N. 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 under article 22, paragraph 7, of the
Convention against Torture.
1.1 The complainant is R.S.A.N., a national of Cameroon born in 1969,
currently residing in Canada and awaiting deportation to his country of
origin. He claims that his forcible return to Cameroon 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.
1.2 The Committee transmitted the complaint to the State party on 13 January
2006, without requesting interim measures of protection.
The Facts as Submitted by the Complainant
2.1 In August 1995, the complainant, then a student at the University of
Yaound�, participated in a strike organized by a student assembly opposed to
President Paul Biya. During a peaceful student march, he was forced into a
police car, handcuffed, beaten and brought to a police station. He was
accused of being one of the leaders of the student assembly and arrested
together with 50 other students, with whom he had to share a cell designed
for no more than 10 persons. One after the other, they were interrogated by
police, forced to sing and dance and beaten with a stick. Those who resisted
were subjected to more severe torture. The complainant was thrown on the
ground and dragged by his feet for at least 5 meters, as a result of which
he has a scar on his back measuring 7 cm in length and 3 cm in width. After
24 hours of torture and humiliation, he was released and warned never to
take part in a student demonstration again. Following the strike, some
student leaders were arrested and sentenced to heavy prison terms. One
student was allegedly burned alive in his dormitory so as to bring false
charges against members of the student assembly; several others were shot to
death during demonstrations. The government also adopted a decree
prohibiting the recruitment of participants in the strike to the public
service or to any of the country's large public and private companies.
2.2 In October 1995, the complaint left Cameroon for C�te d'Ivoire where he
continued his studies and obtained a Master degree in psychology from the
University of Abidjan. In July 1997, together with three fellow students, he
founded and became secretary-general of an NGO to assist women and child
victims of sexual violence ("SOS Violences Sexuelles"). He organized press
conferences and continued to protest against the Cameroonian government,
e.g. by participating in a sit-in on the premises of the Cameroonian Embassy
in Abidjan on 11 October 1997, the day before the Presidential elections in
Cameroon. He also gave radio and television interviews and wrote a number of
newspaper articles on the human rights situation in Cameroon. After his NGO
had uncovered a pedophile ring in C�te d'Ivoire in which a Minister and an
Ambassador were involved, the premises of the organization were devastated
and the complainant received anonymous death threats.
2.3 On 9 June 2000, the complainant entered Canada on a visitor's visa to
participate in a human rights conference from 11 to 30 July. During his stay
in Canada, the political situation in C�te d'Ivoire deteriorated following a
failed coup d'�tat. After a colleague from "SOS Violences Sexuelles" had
warned the complainant that he would not be safe in C�te d'Ivoire, he
applied for refugee status in Canada on 12 July 2000. On 20 July 2001, the
Canadian Immigration and Refugee Board rejected his application, based on
the following contradictions in his counts: (a) His contention that the
President of Yaound� University had removed the names of all participants in
the August 1995 strike from the student register and the fact that he was
nevertheless able to submit grade reports dated October 1995 to the Board as
evidence; (b) inconsistencies between the complainant's chronology of events
and official records according to which the student strike took place in
August 1996 rather than in August 1995; (c) his inability to produce any
newspaper articles or other evidence that would confirm his participation in
the alleged events of 1995; and (d) the fact that official documents suggest
that the punishment of strike participants was not as severe as claimed by
the complainant.
2.4 The complainant did not apply for leave to appeal the decision of the
Immigration and Refugee Board to the Federal Court, but followed the advice
of his lawyer to file an application in the Post-Determination Refugee
Claimants class instead. On 8 December 2004, his application was transformed
into a Pre-Removal Risk Assessment application under the new Immigration
Law. On 13 October 2005, Citizenship and Immigration Canada rejected his
PRRA application, in the absence of sufficient grounds to believe that he
would be exposed to a personal risk of torture in Cameroon. The PRRA officer
based her decision, inter alia, on the following grounds: (a) The fact that
the complainant had manipulated a date and pasted his name into a copy of
the report of the UN Special Rapporteur on Torture on his visit to Cameroon
(E/CN.4/1999/61) which he submitted as evidence; (b) his failure to raise
his torture claim before the Immigration and Refugee Board and the late
submission of that claim on 7 January 2005; and (c) his low political and
journalistic profile. The complainant did not appeal the PRRA decision to
the Federal Court, as he was advised by his lawyer that 99 percent of such
appeals were unsuccessful.
2.5 In the meantime, the complainant established a common law relationship
with a woman from Cameroon with permanent residence in Canada with whom he
has been living since March 2004. A son was born out of their relationship
on 20 December 2004.
2.6 On 9 November 2005, the complainant was informed that his removal from
Canada had been scheduled for 6 December 2005 and that an arrest warrant
would be issued against him, if he failed to present himself to the
immigration authorities at Montreal International Airport. Subsequently, he
filed an application for permanent residence based on his common-law
relationship with a Canadian resident. On 21 November 2005, the complainant
unsuccessfully requested the suspension of his deportation order, as well as
priority consideration of his application for permanent residence. On 28
November 2005, the mother of his child filed an application to sponsor him
as a common-law partner in the family class; the application was
subsequently suspended at the mother's request.
2.7 The complainant was allegedly unable to comply with the removal order on
6 December 2005 as he fell ill and had to go to hospital. An arrest warrant
was subsequently issued against him. No further date has been set for his
deportation but the police came looking for the complainant at his partner's
apartment.
The Complaint
3.1 The complainant claims that his forcible return to Cameroon would expose
him to a risk of torture, in violation of article 3 of the Convention, by
reason of his activities as a student leader, his participation in
conferences, and his critical radio interviews and newspaper articles that
he published in C�te d'Ivoire and in Canada, on the human rights situation
in Cameroon. He submits that he was tortured at the hands of the Cameroonian
police during his detention in 1995, as a result of which he still displays
physical and psychological sequelae.
3.2 The complainant submits that the evidence submitted by him shows that
several other human rights activists were arrested and tortured, or had
disappeared, upon return to Cameroon. As a political opponent who applied
for political asylum in Canada and continued to criticize the Cameroonian
regime, he would be accused of defamation of the Cameroonian government and
tortured by government agents who would enjoy full impunity.
3.3 For the complainant, the human rights situation in Cameroon has further
deteriorated during the past 10 years. Student opposition leaders and human
rights activists continued to be intimidated and persecuted. Certain
provinces, including the complainant's native Eastern province, were
considered rebel provinces and any person from that region facing charges
was likely to be presumed guilty merely on the basis of ethnic affiliation
to the predominantly Bamil�k� population of that province.
3.4 In support of his claims, the complainant submits, inter alia, the
following evidence:
(a) A medical report dated 23 November 2005 issued by a Montr�al health
centre confirming that the complainant has a scar on his back measuring 3 by
7 cm;
(b) A psychological report dated 28 November 2005 from a social worker of
the Jewish Board of Family and Children's Services in New York (USA), based
on a telephone conversation with the complainant, confirming that he has
symptoms of PTSD, i.e. nightmares, exaggerated startle response, memory
impairment, emotional numbness, re-experiencing details of torture,
flashbacks and intrusive symptoms;
(c) A letter from a pastor of Cameroonian origin working at the Eglise
Evang�lique de Pentec�te in Montr�al who had known the complainant in C�te
d'Ivoire in her capacity as secretary-general of an African women's rights
NGO and confirms the complainant's political activities in Cameroon and C�te
d'Ivoire, concluding that he would run a risk of being detained and tortured
or even killed if he were to be deported to Cameroon;
(d) A letter dated 21 November 2005 from the secretary-general of "SOS
Violences Sexuelles," stating that the complainant was a student opposition
leader in Cameroon in the early 1990s and that he was repeatedly threatened
by the authorities in C�te d'Ivoire after he had uncovered the pedophile
ring;
(e) Letters in support of the complainant's request to suspend his
deportation order from the Canadian Committee to Aid Refugees, the Ligue des
Droits et Libert�es and the Scalabrini Centre for Migrants and Refugees;
(f) Several newspaper articles by the complainant, two of which briefly
criticize the political situation in Cameroon, as well as articles about his
work as secretary-general of "SOS Violences Sexuelles";
(g) A number of articles about the fate of political opponents who were
returned to Cameroon, some of whom have allegedly disappeared;
(h) Reports published in 2005 by Amnesty International, FIDH and the U.S.
Department of State stating that torture in police custody and prisons is
widespread and rarely punished in Cameroon.
3.5 The complainant claims to have exhausted domestic remedies, as no
further remedies are available to him. His failure to lodge an appeal
against the rejection of his application for refugee protection and against
the rejection of his PRRA application was due to the inadequate advice from
his lawyer. He argues that, in any event, he would have been unable to pay
the legal fees for lodging appeals against those decisions and that the PRRA
procedure cannot be considered an effective remedy for asylum seekers, given
that 98.5 percent of all applications are rejected. The complainant submits
that the State party failed to give effect to a new Section of the
Immigration and Refugee Protection Act which had been adopted by Parliament
and provided for more effective appeals against decisions on applications
for refugee protection.
3.6 The complainant submits a report of the American Association of Jurists
dated October 2005, which confirms that only 1.5 percent of PRRA
applications are accepted. It describes the PRRA procedure as an
administrative and summary decision on deportation and criticizes the lack
of independence of PRRA officers. Leave to appeal decisions on refugee
applications to the Federal Court was granted in only 10 to 12 percent of
all cases. Moreover, rather than conducting a full review on the merits, the
Court's limited its judicial review to a control of the reasonableness of
decisions to expel an individual, which had been criticized by the Committee
Against Torture in its concluding observations on the fourth and fifth
periodic report of Canada.
State Party's Observations on the Admissibility and on the Merits
4.1 On 25 July 2006, the State party submitted its observations on the
admissibility and, subsidiarily, on the merits of the complaint, arguing
that the complainant has failed to exhaust all available domestic remedies,
as he did not appeal the decisions of the Immigration and Refugee Board and
of the PRRA officer, and that in any event, his claim under article 3 of the
Convention is without merit and fails even to rise to the minimum level of
substantiation required for purposes of admissibility.
4.2 The State party submits that the complainant could have requested leave
to apply for judicial review of the decision of the Immigration and Refugee
Board, which would have been granted by the Federal Court upon showing "a
fairly arguable case." The burden of proof was on him to show that his
failure to avail himself of this remedy was due to the inadequate advice
from his lawyer. The Court's judicial review covers jurisdictional matters,
breaches of principles of natural justice, errors in law, erroneous findings
of fact made in a perverse or capricious manner, or any other breach of the
law by the authorities. The decision of the Federal Court can be appealed to
the Court of Appeal if the judge finds that the case involves a serious
question of general importance. If leave is granted, the decision of the
Court of Appeal can be appealed to the Supreme Court of Canada.
4.3 The State party argues that the Committee has recognized the
effectiveness of the system of judicial review in its recent jurisprudence,
[FNa] and has consistently held that this remedy must be exhausted by
complainants.[FNb] Similarly, it has recently acknowledged that applications
for leave and judicial review of PRRA decisions "are not mere formalities,
but that the Federal Court may, in appropriate cases, look at the substance
of a case."[FNc] For the State party, the PRRA procedure further enhances
the protection afforded by the former Post-Determination Refugee Claimants
procedure which had been considered effective by the Human Rights
Committee.[FNd]
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[FNa] See, e.g., Communication No. 183/2001, B.S.S. v. Canada, at para.
11.6.
[FNb] Communications Nos. 22/1995, 42/1996, 66/1997, 86/1997 and 95/1997
[FNc] Communication No. 273/2005, Aung v. Canada, at para. 6.3
[FNd] Human Rights Committee, Communication No. 603/1994, Badu v. Canada, at
para. 6.2; Communication No. 604/1994, Nartey v. Canada, at para. 6.2;
Communication No. 654/1995, Adu v. Canada, at para. 6.2.
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4.4 The State party disagrees with the Committee's decision in Falcon Rios
v. Canada, [FNe] arguing that PRRA officers are impartial and specifically
trained to assess the risk of rejected applicants on the basis of
international law, including the Convention Against Torture and the
International Covenant on Civil and Political Rights. The low acceptance
rate in the PRRA procedure was due to the fact that most PRRA applicants
were individuals whose application for refugee status had already been
rejected by the Immigration and Refugee Board, which had accepted a total of
40 percent of refugee applications in 2004/05. The aim of the PRRA procedure
was to evaluate any new risk elements at the time of deportation that did
not exist at the time of the hearing before the Immigration and Refugee
Board. The PRRA procedure was not a discretionary procedure but one that was
governed by statutory criteria.
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[FNe] Communication No. 133/1999 (2004), at para. 7.5.
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4.5 The State party submits that the complainant could have applied for
judicial review of the PRRA decision and, at the same time, a stay of his
deportation order pending the outcome of his appeal. The fact that his
lawyer advised him not to do so and instead to file an application for
permanent residence based on his common law relationship with the mother of
his child showed that the complainant had freely chosen not to avail himself
of this remedy. However, this did not exempt him from the requirement to
exhaust domestic remedies, in accordance with article 22, paragraph 5 (b),
of the Convention.
4.6 According to the State party, the complainant can still apply for
permanent residence on humanitarian grounds, a remedy for applicants who
would face unreasonable hardship if they were to apply for Canadian
permanent residence in their country of origin. The fact that a favourable
outcome of this procedure had caused the Committee to discontinue a number
of cases in the past showed the effectiveness of this remedy.
4.7 While acknowledging that the general human rights situation in Cameroon
is critical, the State party submits that the complainant did not adduce
sufficient elements to believe that he would be exposed to a personal risk
of being subjected to torture upon return to Cameroon. The credibility of
his claim to have been detained for 24 hours and tortured in 1995 was
undermined by a number of contradictions identified by the Immigration and
Refugee Board, an independent tribunal, and by the PRRA officer. Due weight
should be accorded to the findings of these organs, unless it can be
demonstrated that such findings are arbitrary or unreasonable.
4.8 The State party submits that the complainant's medical report merely
confirms the existence of a scar on his back without specifying the cause of
this injury. Even assuming that he was tortured in 1995, this would not
constitute sufficient grounds to believe that he would still risk to be
subjected to torture in Cameroon in 2006. The State party concludes that his
claim under article 3 of the Convention is inadmissible under article 22,
paragraph 5 (b), fails to meet the minimum level of substantiation required
for purposes of admissibility, and is without merit in any event.
Complainant's Comments on the State Party's Observations
5.1 On 23 September 2006, the complainant commented on the State party's
submission, reiterating that the PRRA procedure, including judicial review
thereof, does not constitute an effective remedy for refused refugee
applicants and that his failure to apply for judicial review of the decision
of the Immigration and Refugee Board, which he considers an effective remedy
albeit limited in scope, was to be attributed to the inadequate advice that
he had received from his lawyer.
5.2 The complainant argues that an application for permanent residence on
humanitarian grounds is a purely discretionary remedy but admits that it had
led to favourable results in a number of cases. However, all elements for a
humanitarian solution were before the Minister of Immigration and Refugees
whose decision on the complainant's application for family sponsorship was
still pending after more than nine months, although such decisions were
normally taken after six to eight months.
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 complainant 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 argument that the
complaint should be declared inadmissible under article 22, paragraph 5 (b),
of the Convention as the complainant failed to apply for judicial review of
the decisions taken by the Immigration and Refugee Board and by the PRRA
officer, or for permanent residence based on humanitarian grounds. It also
notes the complainant's arguments as to the ineffectiveness and the
discretionary nature of the PRRA and humanitarian procedures. However, the
Committee need not pronounce itself on the effectiveness of these remedies
if it can be ascertained that the complainant could have availed himself of
the possibility of applying for judicial review of the rejection of his
application for refugee protection by the Immigration and Refugee Board.
6.4 The Committee recalls that the complainant does not generally contest
the effectiveness of judicial review of decisions on applications for
refugee protection, despite the limited scope of such review. However, he
claims that he was precluded from availing himself of this remedy because of
his difficult financial situation and because of the advice from his lawyer
not to apply for judicial review of the decision of the Immigration and
Refugee Board. In this regard, the Committee notes that the complainant has
not provided any information on the costs of legal representation or court
fees, nor on the possibilities or any efforts on his part to obtain legal
aid for the purpose of initiating proceedings before the Federal Court. It
also observes that alleged errors made by a privately retained lawyer cannot
normally be attributed to the State party. The Committee concludes that the
complainant has not adduced sufficient elements which would justify his
failure to avail himself of the possibility to apply for judicial review of
the decision of the Immigration and Refugee Board.
6.5 The Committee is therefore of the view that domestic remedies have not
been exhausted, in accordance with articlse 22, paragraph 5 (b), of the
Convention.
7. Accordingly, the Committee 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.]
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