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1.1 The author of the
communication, initially dated 10 January 2002, is Mansour Ahani, a citizen
of the Islamic Republic of Iran ('Iran') and born on 31 December 1964. At
the time of submission, he was detained in Hamilton Wentworth Detention
Centre, Hamilton Ontario, pending conclusion of legal proceedings in the
Supreme Court of Canada concerning his deportation. He claims to be a victim
of violations by Canada of articles 2, 6, 7, 9, 13 and 14 of the
International Covenant on Civil and Political Rights. The author is
represented by counsel.
1.2 On 11 January 2002, the Committee, acting through its Special Rapporteur
for New Communications, pursuant to Rule 86 of the Committee's Rules of
Procedure, requested the State party, in the event that the Supreme Court's
decision expected the same day would permit the author's deportation, "to
refrain from deportation until the Committee has had an opportunity to
consider the allegations, in particular those that relate to torture, other
inhuman treatment or even death as a consequence of the deportation". By
Note of 17 May 2002, the Committee, having been informed by counsel of a
real risk that the State party would not comply with the Committee's request
for interim measures of protection, reiterated its request. On 10 June 2002,
the State party deported the author to Iran.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 14 October 1991, the author arrived in Canada from Iran and claimed
protection under the Convention on the Status of Refugees and its Protocol,
based on his political opinion and membership in a particular social group.
He contended, on various occasions, that he had been beaten by members of
the Islamic Revolutionary Committee in Iran for being intoxicated, (ii) that
his return to Iran would endanger his life due to his knowledge of Iranian
covert operations and personnel, knowledge which he had acquired as a forced
conscript in the foreign assassins branch of the Iranian Foreign Ministry,
(iii) that he had been jailed for four years as a result of refusing to
carry out a drug raid which was in fact a raid on the home of an Iranian
dissident, with women and children, in Pakistan, and (iv) that he had been
released after pretending to repent. On 1 April 1992, the Immigration and
Refugee Board determined that the author was a Convention refugee based on
his political opinion and membership in a particular social group.
2.2 On 17 June 1993, the Solicitor-General of Canada and the Minister of
Employment & Immigration, having considered security intelligence reports
stating that the author was trained to be an assassin by the Iranian
Ministry of Intelligence and Security ("MIS"), both certified, under s40(1)
of the Immigration Act ("the Act"), that they were of the opinion that the
author was inadmissible to Canada under section 19(1) of the Act as there
were reasonable grounds to believe that he would engage in terrorism, that
he was a member of an organization that would engage in terrorism and that
he had engaged in terrorism. On the same date, the certificate was filed
with the Federal Court, while the author was served with a copy of the
certificate and, pursuant to section 40(1)(2)(b) of the Act, he was taken
into mandatory detention, where he remained until his deportation nine years
later.
2.3 On 22 June 1993, in accordance with the statutory procedure set out in
section 40(1) of the Act for a determination of whether the Ministers'
certificate was "reasonable on the basis of the information available", the
Federal Court (Denault J) examined the security intelligence reports in
camera and heard other evidence presented by the Solicitor-General and the
Minister, in the absence of the plaintiff. The Court then provided the
author with a summary of the information, required by statute to allow the
affected person to be "reasonably" informed of the circumstances giving rise
to the certification while being appropriately redacted for national
security concerns, and offered the author an opportunity to respond.
2.4 Rather than exercising his right to be heard under this procedure, the
author then challenged the constitutionality of the certification procedure
and his detention subsequent to it in a separate action before the Federal
Court. On 12 September 1995, the Federal Court (McGillis J) rejected his
challenge, holding that the procedure struck a reasonable balance between
competing interests of the State and the individual, and that the detention
upon the Ministers' certification pending the Court's decision on its
reasonableness was not arbitrary. The author's further appeals against that
decision were dismissed by the Federal Court of Appeal and the Supreme Court
on 4 July 1996 and 3 July 1997, respectively.
2.5 Following the affirmation of the constitutionality of the section 40(1)
procedure, the Federal Court (Denault J) proceeded with the original
reasonableness hearing, and, following extensive hearings, concluded on 17
April 1998 that the certificate was reasonable. The evidence included
information gathered by foreign intelligence agencies which was divulged to
the Court in camera in the author's absence on national security grounds.
The Court also heard the author testify on his own behalf in opposition to
the reasonableness of the certificate. The Court found that there were
grounds to believe that the author was a member of the MIS, which "sponsors
or undertakes directly a wide range of terrorist activities including the
assassination of political dissidents worldwide". The Federal Court's
decision on this matter was not subject to appeal or review.
2.6 Thereafter, in April 1998, an immigration adjudicator determined that
the author was inadmissible to Canada, and ordered the author's deportation.
On 22 April 1998, the author was informed that the Minister of Citizenship &
Immigration would assess the risk the author posed to the security of
Canada, as well as the possible risk that he would face if returned to Iran.
The Minister was to consider these matters in deciding under section
53(1)(b) of the Act [FN1] (which implements article 33 of the Convention on
the Status of Refugees) whether the prohibition on removing a Convention
refugee to the country of origin could be lifted in the author's case. The
author was accordingly given an opportunity to make submissions to the
Minister on these issues.
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[FN1] Section 53(1)(b) reads, in relevant part: "� [N]o person who is
determined � to be a Convention refugee � shall be removed from Canada to a
country where the person's life or freedom would be threatened for reasons
of race, religion, nationality, membership in a particular social group or
political opinion unless �(b) the person is a member of an inadmissible
class described in paragraph 19(1)(e), (f), (g),(j),(k) or (l) and the
Minister is of the opinion that the person constitutes a danger to the
security of Canada".
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2.7 On 12 August 1998, the Minister, following representations by the author
that he faced a clear risk of torture in Iran, determined, without reasons
and on the basis of a memorandum attaching the author's submissions, other
relevant documents and a legal analysis by officials, that he (a)
constituted a danger to the security of Canada and (b) could be removed
directly to Iran. The author applied for judicial review of the Minister's
opinion. Pending the hearing of the application, the author applied for
release from detention pursuant to section 40(1)(8) of the Act, as 120 days
has passed from the issue of the deportation order against him. [FN2] On 15
March 1999, the Federal Court (Denault J), finding reasonable grounds to
believe that his release would be injurious to the safety of persons in
Canada, particularly Iranian dissidents, denied the application for release.
The Federal Court of Appeal upheld this decision.
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[FN2] Section 40(1) provides, in material part : "(8) Where a person is
detained under subsection (7) and is not removed from Canada within 120 days
of after the making of a removal order relating to that person, the person
may apply to the [Federal Court].
(9) On [such] an application, the [Federal Court] may, subject to such terms
and conditions as the [Federal Court] deems appropriate, order that the
person be released from detention if the [Federal Court] is satisfied that
(a) the person will not be removed from Canada within a reasonable time; and
(b) the person's release would not be injurious to national security or the
safety of persons."
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2.8 On 23 June 1999, the Federal Court (McGillis J) rejected the author's
application for judicial review of the Minister's decision, finding there
was ample evidence to support the Minister's decision that the author
constituted a danger to Canada and that the decision to deport him was
reasonable. The Court also dismissed procedural constitutional challenges,
including to the process of the provision of the Minister's danger opinion.
On 18 January 2000, the Court of Appeal rejected the author's appeal. It
found that "the Minister could rightly conclude that the [author] would not
be exposed to a serious risk of harm, let alone torture" if he were deported
to Iran. It agreed that there were reasonable grounds to support the
allegation that the author was in fact a trained assassin with the Iranian
secret service, and that there was no basis upon which to set aside the
Minister's opinion that he was a danger to Canada.
2.9 On 11 January 2001, the Supreme Court unanimously rejected the author's
appeal, finding that there was "ample support" for the Minister to decide
that the author was a danger to the security of Canada. It further found the
Minister's decision that he only faced a "minimal risk of harm", rather than
a substantial risk of torture, in the event of return to Iran to be
reasonable and "unassailable". On the constitutionality of deportation of
persons at risk of harm under section 53(1)(b) of the Act, the Court
referred to its reasoning in a companion case of Suresh v Canada (Minister
of Citizenship & Immigration) [FN3] decided the same day, where it held that
"barring extraordinary circumstances, deportation to torture will generally
violate the principles of fundamental justice". As Suresh had established a
prima facie risk of torture, he was entitled to enhanced procedural
protections, including provision of all information and advice the Minister
intended to rely on, receipt of an opportunity to address the evidence in
writing and to be given written reasons by the Minister. In the author's
case, however, the Court considered that he had not cleared the evidentiary
threshold required to make a prima facie case and access these protections.
The Court was of the view that the author, in the form of the letter
advising him of the Minister's intention to consider his danger to Canada as
well as the possible risks to him in the event of expulsion, "was fully
informed of the Minister's case against him and given a full opportunity to
respond". The process followed, according to the Court, was therefore
consistent with principles of fundamental justice and not prejudicial to the
author even though it had not followed the Suresh requirements.
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[FN3] [2002] 1 SCR.
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2.10 The same day, the Committee indicated its request pursuant to Rule 86
of its Rules of Procedure for interim measures of protection, however the
State party's authorities proceeded with arrangements to effect removal. On
15 January 2002, the Ontario Superior Court (Dambrot J) rejected the
author's argument that the principles of fundamental justice, protected by
the Charter, prevented his removal prior to the Committee's consideration of
the case. On 8 May 2002, the Court of Appeal for Ontario upheld the
decision, holding that the request for interim measures was not binding upon
the State party. On 16 May 2002, the Supreme Court, by a majority, dismissed
the author's application for leave to appeal (without giving reasons). On 10
June 2002, the author was deported to Iran.
THE COMPLAINT
3.1 In his original communication (preceding expulsion), the author claims
that Canada had violated, or would violate if it expelled him, articles 2,
6, 7, 9, 13 and 14 of the Covenant. Firstly, he contends that the statutory
and administrative processes to which he was determined are not consistent
with the guarantees of articles 2 and 14 of the Covenant. In particular, the
discretion of the Minister of Immigration in directing a person's return to
a country may be affected by considerations adverse to human rights
concerns, including negative media coverage of a case. In addition, the
Minister of Immigration's role in the expulsion process is neither
independent nor impartial. The author argues that the Minister initially
signs a security certificate that a person presents a security threat,
defends the certification before the "reasonableness" hearing in Federal
Court and prosecutes against the person at the deportation inquiry, all
before having to decide whether a person thereafter eligible for expulsion
should be expelled. In the author's view, it should not be an elected
politician, without giving reasons, making such a decision on a subjective
basis, but rather an independent and impartial tribunal.
3.2 The author also argues the process is further procedurally deficient in
that it provides insufficient notice of the case against the affected
individual. A person is simply advised that immigration officials will
recommend to the Minister that a person be subject to expulsion under
section 53(1) of the Act, without reasons provided, and is invited to make
submissions. The submissions of the Minister's officials in response to
those of the affected person are not provided and thus cannot be rebutted.
The absence of any reasons provided in the decision makes judicial review of
the decision against the submissions made to the Minister impossible.
3.3 The author further argues that the inability to apply for appeal or
review of the Federal Court's "reasonableness" decision on the initial
security certificate is deficient. Nor could he raise (fundamental) concerns
as to the fairness of the process at the "reasonableness" hearing. He argues
the Court does not test the evidence and does not hear independent
witnesses. There are no national security reasons warranting a due process
exception as, in the author's view, there was no evidence of either a threat
by him to Canadian national security or of (even a threat of) criminal
conduct in Canada. In the author's view, the security concern accordingly
does not satisfy the standards set out in the 1995 Johannesburg Principles
on National Security, Freedom of Expression and Access to Information. [FN4]
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[FN4] UN Doc E/CN.4/1996/39 (Annex).
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3.4 The author also claims he has been subjected to arbitrary detention,
contrary to article 9 of the Covenant. Since his detention in June 1993, he
was only eligible for a detention review 120 days after issuance of his
deportation order in August 1998. By that point, he had spent five years in
detention without access to bail, detention review or habeas corpus (the
latter unavailable to non-citizens in respect of detention relating to a
person's status in Canada). He points out that his detention under the
Immigration Act was mandatory, as well as arbitrary in that while the
Federal Court described his detention as "unfortunate", it did not regard it
an infringement of his liberty. He regards this as an example of
discriminatory treatment of non-citizens. He also argues that it is perverse
and therefore arbitrary to continue a person's detention while s/he is
exercising a basic human right, that is, access to court.
3.5 The author argues that expulsion would expose him to torture, in breach
of article 7 of the Covenant. He refers to the Committee's General Comment
15 on aliens and 20 on article 7, as well as the decision of Chahal v United
Kingdom [FN5] of the European Court of Human Rights, for the proposition
that the principle of non-refoulement admits of no exceptions. He contends
that the State party is thus in error in respect of both its alleged claims
that (i) he is not at risk of torture, and (ii) even if he were, he may be
expelled on the grounds of threat to national security.
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[FN5] (1996) 23 E.H.R.R. 413.
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3.6 For the proposition that he is, in fact, at risk of torture, the author
refers to a variety of reports and evidence generally regarding the human
rights situation in Iran, including arbitrary detention, torture and
extra-judicial and summary murder of political dissidents. [FN6] He contends
that in his case, the senior Canadian intelligence officer who testified
believed that he was afraid of what might happen to him in Iran and that he
had defected. In addition, his refugee status had been recognized after a
full hearing. He contends that his case has a high public profile and that
he was not aware that he could seek a closed hearing. The details of the
co-operation and (confidential) information he provided to the State party's
authorities, as well as his resistance to deportation, could "very likely"
constitute treason in Iran, which has been monitoring his case. On either
the State party's or his own account of his past relationship with the MIS,
therefore, there "could not be a clearer case" of a person who could expect
torture in Iran.
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[FN6] The author refers to "Iran : Trial of Political Activists Begins �
Basic Rights Violated in Secret Detentions" Human Rights Watch, 8 January
2002 ; "Iran : Journalists at Risk" Human Rights Watch, 22 December 2001 ;
"Iran: Release Detainees from Iran Freedom Movement" Human Rights Watch, 10
November 2001; "Iran: Human Rights Developments" in World Report 2001 and
World Report 1998, Human Rights Watch; "Iran: A Legal System that Fails to
Protect Freedom of Expression & Association" Amnesty International, December
2001; "Iran: Halt the Surge of Executions" Amnesty International, 17 August
2001; "Iran: The Revolutionary Court Must End Arbitrary Arrests" Amnesty
International, 11 April 2001; "Iran: Time for Judicial Reform and End to
Secret Trials" Amnesty International, 16 September 1999; "Iran: Country
Reports on Human Rights Practices for 2000" United States Department of
State, 23 February 2001; "Iran: Country Reports on Human Rights Practices
for 1997" United States Department of State, 30 January 1998; "Iran" in
Annual Report for 1997, Amnesty International; "U.N. Urges Halt to Public
Executions", New York Times, 23 April 1998; "U.N. Rebukes Iran Over Human
Rights Violations", Toronto Star, 19 April 1998.
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3.7 On the same basis, the author fears that his removal will result in his
execution in Iran, breaching his rights under article 6. The author also
makes a corollary claim under article 7 that his detention since June 1993
in a cell in a short-term detention facility with no programmes or gainful
occupation is itself cruel.
THE STATE PARTY'S SUBMISSIONS ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION
4.1 By submissions on 12 July 2002, the State party contested the
admissibility and the merits of the communication, arguing that, for the
reasons described below, the claims are all inadmissible as not having made
out a prima facie claim and thus inadmissible, as well as being unfounded on
the merits. In addition, certain elements of the communication are also said
to be inadmissible for failure to exhaust domestic remedies.
4.2 As to the alleged violation of article 2, the State party refers to the
Committee's jurisprudence that article 2 confers an accessory, rather than a
freestanding, right, which arises only after another violation of the
Covenant has been established. Accordingly, no prima facie violation is
established. Alternatively, there has been no violation � the State party's
constitutional Charter of Rights and Freedoms protects Covenant rights, and
the domestic courts found no Charter violation. As to the contention that
Charter rights are not equally enjoyed between citizens and non-citizens,
the State party argues that most rights, including the right to life,
liberty and security of the person, apply to all persons in Canada. As to
freedom of expression and association, the Supreme Court held in Suresh that
these rights do not include persons who, to use the State party's words,
"are or have been associated with things directed at violence". This finding
applies equally to Canadians as well as to non-Canadians.
4.3 Concerning the alleged violations of articles 6 and 7 in the event of a
return to Iran, the State party argues that the facts, as determined by its
courts, do not support these allegations. In addition, the author is not
credible, in the light of his inconsistent accounts of his involvement MIS,
the implausibility of important aspects of his story, and repeated, proven
dishonesty. In addition, current human rights abuses are directed against
regime opponents in Iran, rather than persons with the author's profile.
4.4 As to the allegations of risk, the State party points out that the
Minister's staff assessed any risk of harm as "minimal", a finding upheld by
all federal courts up to the Supreme Court, which regarded it as
"unassailable". In addition, the courts clearly determined as fact that the
author was not credible, based inter alia on inconsistent, contradicted,
embellished and repeatedly untruthful statements. They also relied upon his
recognition that he had received specialized training upon recruitment into
the secret service, his disclosure of the details of assassination of two
dissidents and his contact with the secret service, after receipt of refugee
status, including meeting a "known assassin" in Europe. The State party
refers to the Committee's approach that it is not generally its function to
weigh evidence or re-assess findings of fact such as these made by the
domestic courts, and requests, should the Committee decide to review the
factual conclusions, the opportunity of making further submissions.
4.5 Neither, in the State party's view, are the author's allegations of risk
supported by independent evidence. The State party observes that the
documents cited by the author refer primarily to arrest and trials of
reformists, dissidents and other government opponents, rather than persons
of the author's profile, members current or former of the MIS. Indeed, the
most recent human rights report of the United States' Department of State
indicates that MIS personnel are prominent agents, rather than targets, of
persecution, committing "numerous serious human rights abuses". [FN7] While
the human rights situation remains problematic, the State party, relying on
reports of Amnesty International [FN8] and the U.N. Special Representative
of the Commission on Human Rights on the human rights situation in Iran,
identifies signs of progress towards reduced use of torture. [FN9] Nor, for
its part, has the case law of the Committee against Torture characterized
the human rights situation in Iran as "a consistent pattern of gross,
flagrant or mass violations of human rights". Thus the general human rights
situation is not, per se, of the type or severity to support the
allegations.
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[FN7] "Iran: Country Reports on Human Rights Practices for 2001", United
States' Department of State.
[FN8] "Iran: Time for Judicial Reform and End to Secret Trials", op.cit.
[FN9] A/56/278, 10 August 2001.
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4.6 The State party regards the contention that he would be summarily
executed for treasonous conduct in the event of a return as merely
speculative and self-serving. The author has not established such an action
to be the "necessary and foreseeable" consequence of deportation. The author
had full opportunity to establish this at all levels of the Canadian courts,
and failed to do so. Alternatively, even if he was regarded as treasonous,
he has not shown that he would fail to receive a trial and punishment
consistent with the Covenant. Similary, with respect to torture, the courts
found that only a minimal risk of harm existed. The State party emphasizes
that the author was recognized to be a refugee before he voluntarily
traveled to Europe with a commander of MIS and came to the attention of the
Canadian security service. It adds that if the author's identity as a
trained operative had earlier been known, he would not have been admitted to
the country. It also rejects that any awareness that Iran has of the case
must imply torture, as well as any substantiation of the claim that the
senior Canadian intelligence officer believed he defected. Nor has he
provided any evidence of mistreatment of family, or shown why alleged
co-operation with the Canadian authorities would of itself give rise to
torture. As a result, these claims are unsubstantiated on even a prima facie
basis.
4.7 As to the alleged violation of article 7 through conditions of
detention, the State party argues the author did not file a Charter claim
raising this issue before the courts, despite being advised of complaints
possibilities, and thus the claim is inadmissible for lack of exhaustion of
domestic remedies. In any case, the absence of activities during treatment
cannot be considered cruel, and the author has not shown that his conditions
of detention caused any adverse physical or mental effects.
4.8 On the issue of arbitrary detention, the author could have appealed the
Federal Court of Appeal's confirmation of his detention under section
40(1)(8) of the Act to the Supreme Court but did not do so. Nor did he file
any subsequent motion for release under the section. As a result, the claims
are inadmissible for non-exhaustion of domestic remedies.
4.9 In any event, there is no prima facie violation of article 9 as the
detention was not arbitrary. Guidance may be drawn from article 5 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms ("European Convention"), which explicitly permits detention with a
view to deportation. Indeed, in the Chahal case cited by the author, the
European Court considered that such detention is justified as long as
deportation proceedings are in progress and being pursued with due
diligence. Chahal's detention on the basis that successive Secretaries of
State had maintained he was a threat to national security was not arbitrary,
in view of the process available to review the national security elements.
Neither is it arbitrary, argues the State party, for it to detain a
non-Canadian individual under a procedure where two Ministers determine,
pursuant to law, that an individual has a terrorist background or
propensities. This determination is then expeditiously reviewed in court. Of
22 cases where this process has been followed, 11 cases were reviewed in 1
to 2 months, 3 cases in 3 to 4 months, 4 cases in 6 to 13 months and one
case is ongoing.
4.10 The State party refers to the Committee's jurisprudence that an
individual's insistence not to leave a State's territory is relevant to the
article 9 assessment. [FN10] Similarly, the European Commission has held
that an individual cannot complain of passage of time if at no stage he
requested expeditious termination of proceedings and pursued any litigation
avenue he could find. [FN11] The author did not ask the Minister of
Citizenship & Immigration to exercise his power under section 40(1)(7) of
the Act to release, for purposes of departure, a person named in a security
certificate.
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[FN10] V.M.R.B. v Canada Case No 236/1987, Decision adopted on 26 July 1988.
FN11 Osman v United Kingdom, Khan v United Kingdom and Kolompar v Belgium.
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4.11 The State party argues it has exercised due diligence in pursuing the
deportation proceedings, and that the author is responsible for the length
of time they have taken. All of the delay prior to the section 40(1)
"reasonableness" hearing on the security certificate was due to the author's
request for adjournment to challenge the constitutionality of the procedure.
He let this challenge lapse for long periods without taking steps within his
control necessary to advance the process. In fact, the State party details
numerous steps it took in this period seeking to advance the procedure
expeditiously. Similarly, after issue of the removal order, the additional
delay of the removal was caused by the author's exercise of numerous
remedies available to him. The State party details the steps it took to
expedite the procedures described in the chronology of the case, noting that
the author took no such steps of expedition.
4.12 Concerning the author's contention that habeas corpus is not available
to non-citizens in respect of detention regarding immigration status, the
State party submits that as continued detention depends on the outcome of
the Federal Court's "reasonableness" hearing on the security certificate,
there is no need for a separate hearing on detention. In other words, the
mandatory "reasonableness" hearing is a statutory detention review, within
the power of Parliament to prescribe for such purposes. The Canadian courts
have also held this procedure an adequate and effective alternative remedy
to habeas corpus. Accordingly, the State party rejects the author's
contention that its courts found that his detention was "unfortunate" but
not a loss of liberty: the courts in fact held that while the certification
has the immediate effect of leading to arrest and detention, a fate normally
reserved to criminals, there was no violation of articles 7 and 9 of the
Charter, both of which protect liberty interests. [FN12]
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[FN12] Article 7 of the Charter provides: "Everyone has the right to life,
liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice", while
article 9 provides: "Everyone has the right not to be arbitrarily detained
or imprisoned."
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4.13 In term of the claim under article 13 of the Covenant, the State party
argues, firstly, that, according to the Committee's jurisprudence, this
provision requires that an alien is expelled according to the procedures
laid down by law, unless the State had acted in bad faith or abused its
power. [FN13] The author has not argued, much less established, any such
exception here, and thus it would be appropriate for the Committee to defer
to the Canadian authorities' assessment of the facts and law. Secondly, the
State party pleads national security grounds in connection with the
procedures followed. In its jurisprudence, the Committee has held that "it
is not for the Committee to test a sovereign State's evaluation of an
alien's security rating" [FN14] and that it would defer to such an
assessment in the absence of arbitrariness. [FN15] The State party invites
the Committee to apply the same principles, emphasizing that the decision of
expulsion was not summary but followed careful deliberation through full and
fair procedures in which the author was legally represented and submitted
extensive arguments.
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[FN13] Maroufidou v Sweden Case No 58/1979, Views adopted on 9 April 1981.
[FN14] V M R B v Canada, op cit., and J R B v Costa Rica Case No
296/1988,Decision adopted on 30 March 1989.
[FN15] Stewart v Canada, Case No 538/1993, Decision adopted on 18 March
1994.
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4.14 Concerning the process of the Federal Court "reasonableness" hearing on
the security certificate, while constitutional issues could not be raised at
that hearing, which is an expedited one, they can be the subject of a
separate constitutional challenge, as the author himself pursued to the
level of the Supreme Court. The State party observes that the judge has a
"heavy burden" of ensuring that the author is reasonably informed by way of
summary of the case against him, and he can present a case in reply and call
witnesses; indeed, the author himself cross-examined two Canadian security
service officers.
4.15 As to the process of the Minister's risk determination, the State party
points out that the Supreme Court has indicated in Suresh the minimum
requirements of fairness, including that reasons be given, applicable when a
prima facie case of torture has been made out. As to the objection that the
decision is made by a Minister previously involved in the process, the State
party points out that the courts hold, through judicial review, the decision
to law. While deferring to the Minister's weighing of evidence unless
patently unreasonable, the courts insist that all relevant, and no
irrelevant, factors are considered. The State party argues that as the
procedures were fair, in accordance with law, and properly applied with the
author having access to courts with legal representation and without any
other factors of bias, bad faith or impropriety being present, the author
has not established a prima facie violation of article 13.
4.16 As to the article 14 claims, the State party finds this provision
inapplicable as deportation proceedings are neither the determination of a
criminal charge nor a rights and obligations in a "suit at law". They are
rather public law proceedings, whose fairness is guaranteed in article 13.
In Y.L. v Canada, [FN16] the Committee, given the existence of judicial
review, did not decide whether proceedings before a Pension Review Board
came within a "suit at law", while in V.M.R.B., [FN17] the Committee did not
decide whether deportation proceedings could be so charactersied as in any
event the claim was unsubstantiated. The State party submits that given the
equivalence of article 6 of the European Convention with article 14, the
Committee should find persuasive the strong and consistent jurisprudence
that such proceedings fall outside the scope of this article. It follows
that this claim is inadmissible ratione materiae.
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[FN16] Case No 112/1981, Decision adopted on 8 April 1986.
[FN17] Op. cit.
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4.17 In any event, the proceedings satisfied article 14 guarantees: the
author had access to the courts, knew the case he had to meet, had a full
opportunity to make his views known and to make submission throughout the
proceedings and was legally represented at all stages. The State party also
refers the Committee to its decision in V.M.R.B., where it found the
certification process under section 40(1) of the Immigration Act consistent
with article 14. There is thus no prima facie violation of the right
claimed.
4.18 By Note of 6 December 2002, the State party, while re-iterating its
view of the limited scope of the Committee's function to re-evaluate factual
and evidentiary determinations, supplied extensive additional information on
these issues in the event the Committee wished to do so. The State party
submitted that a fair assessment of the information provided inevitably lead
to the same conclusions reached by the domestic courts: that the author was
a trained operative of the MIS, that he was at minimal risk of harm in Iran,
and that his evidence was neither credible nor trustworthy.
FURTHER ISSUES ARISING IN RELATION TO THE COMMITTEE'S REQUEST FOR INTERIM
MEASURES
5.1 By letter of 2 August 2002 to the State party's representative to the
United Nations in Geneva, the Committee, through its Chairperson, expressed
great regret at the author's deportation, in contravention of its request
for interim protection. The Committee sought a written explanation about the
reasons which led to disregard of the Committee's request for interim
measures and an explanation of how it intended to secure compliance with
such requests in the future. By Note of 5 August 2002, the Committee, acting
through its Special Rapporteur for New Communications, pursuant to Rule 86
of the Committee's Rules of Procedure, requested the State party to monitor
closely the situation and treatment of the author subsequent to his
deportation to Iran and to make such representations to the Government of
the Islamic Republic of Iran that were deemed pertinent in order to prevent
violations of the author's rights under articles 6 and 7 of the Covenant.
5.2 By submissions dated 5 December 2002, the State party, in response to
the Committee's request for explanation, argued that it fully supported the
important role mandated to the Committee and would always do its utmost to
co-operate with the Committee. It contended that it took its obligations
under the Covenant and the Optional Protocol very seriously and that it was
in full compliance with them. The State party points out that alongside its
human rights obligations it also has a duty to protect the safety of the
Canadian public and to ensure that it does not become a dafe haven for
terrorists.
5.3 The State party noted that neither the Covenant nor the Optional
Protocol provide for interim measures requests and argues that such requests
are recommendatory, rather than binding. Nonetheless, the State party
usually responded favourably to such requests. As in other cases, the State
party considered the instant request seriously, before concluding in the
circumstances of the case, including the finding (upheld by the courts) that
he faced a minimum risk of harm in the event of return, that it was unable
to delay the deportation. The State party pointed out that usually it
responds favourably to requests its decision to do so was determined to be
legal and consistent with the Charter up to the highest judicial level. The
State party argues that interim measures in the immigration context raise
"some particular difficulties" where, on occasion, other considerations may
take precedence over a request for interim measures. The particular
circumstances of the case should thus not be construed as a diminution of
the State party's commitment to human rights or the Committee.
5.4 As to the Committee's request to monitor the author's treatment in Iran,
the State party argued that it had no jurisdiction over the author and was
being asked to monitor the situation of a national of another State party on
that State party's territory. However, in a good faith desire to co-operate
with the Committee, the State party stated that on 2 October 2002 the
Iranian authorities had advised that the author remained in Iran and was
well. In addition, on 26 September 2002, the State party was contacted by a
representative of the Iranian Embassy, advising that the author had called
to inquire about three pieces of luggage he had left at the detention
centre. The Embassy had agreed to convey the luggage back to the author. In
the State party's view, this showed that the author does not fear the
Iranian government, which is willing to assist him. Finally, on 10 October
2002, the author visited the State party's Embassy in Iran, met with two
employees and handed over a letter. Neither the conversation nor the letter
raised ill treatment issues, rather, he had difficulty obtaining employment.
In the State party's view, this showed he was able to move about Teheran at
will. The State party stated it had indicated to Iran that it expected it to
comply fully with its international human rights obligations, including as
owed to the author.
COMMENTS OF THE AUTHOR'S COUNSEL
6.1 By letter of 10 September 2003, counsel for the author responded to the
State party's submissions. Procedurally, counsel observed that she had
received instructions from the author prior to removal that she should
continue the communication if he encountered difficulties, but that she
should desist pursuit of the case if the author experienced no difficulties
after his return to Iran, in order not to place him at increased risk. On
the basis of a telephone call one month after deportation, counsel believed
that the author had been arrested upon arrival, but not mistreated, and
released. A journalistic source subsequently rumoured that he had been
detained or killed. Upon repeated attempts to call the family, counsel was
told he was at another location and/or that he was sick. Canadian officials
had indicated several contacts from the author in fall 2002, but they had
reported nothing since. Similarly, Amnesty International had been unable to
confirm further details. In this light, counsel assumed the author had come
to harm and thus pursued the communication.
6.2 As to the substance, counsel does not wish to pursue the claim on
conditions of detention, in light of an admitted failure to exhaust domestic
remedies. As to the remaining issues, she develops her argument in respect
of the process followed by the State party authorities. The initial security
certification was made by two elected officials (Ministers) without, any
input from the author, as to whether it was "reasonable" to believe that he
was a member of a terrorist organization or himself so engaged. The sole
Federal Court hearing thereafter only determined whether that belief was
itself reasonable. The Crown evidence was led in camera and ex parte,
without being tested by the court or supported by witnesses. Counsel thus
argues that the conclusion of a national security threat, which was
subsequently balanced at the removal stage by one elected official (a
Minister) against the risk of harm, was reached by an unfair process. The
decision to remove, in turn, was reviewed by the courts only for patent
unreasonableness, rather than correctness.
6.3 Counsel responds to the State party's arguments on the author's
credibility by referring to UNHCR practice to the effect that a lack of
credibility does not of itself negate a well-founded fear of persecution.
[FN18] Counsel notes that his initial application refugee claim was accepted
despite variations in his account as to his past, and further that the
Canadian security agencies destroyed their evidence, including interviews
with the author and polygraph records, and provided only summaries. This
evidence could have been tested as is the case before the Security
Intelligence Review Committee, where an independent counsel, cleared on
security grounds, could call witnesses and cross-examine in secret hearing.
-------------------------------------------------------------------------------------------------------------------------------
[FN18] Handbook on Procedures and Criteria for Determining Refugee Status,
Office of the United Nations High Commissioner for Refugees, at para 198 et
seq.
-------------------------------------------------------------------------------------------------------------------------------
6.4 Counsel proceeds to attack the decision of the Supreme Court handed down
in the author's case subsequent to submission of the communication. Counsel
observes that Mr. Suresh, whose appeal was upheld on the basis of
insufficient procedural protections, and the author, whose appeal was
rejected, both underwent the same process. The basis of the Court's decision
in the author's case was that he had not made out a prima facie risk of
torture, however, the entire premise of a fair process is that an accurate
determination of precisely this question can be made. Instead, all the
author received was a post-decision judicial review on whether it was
"reasonable" to so conclude, which, in counsel's view, is an inappropriately
low standard for a decision that could result in torture or loss of life.
Counsel also recalls that the Court in Suresh envisaged some extra-ordinary
situations where a person could be returned where a substantial risk of
torture had been made out, contrary to the absolute ban on torture in
international law.
6.5 On the issue of the author's credibility, counsel points out that the
senior Canadian security officer corroborated at the security certificate
hearing the author's claim that he had defected � the only dispute with the
author was whether that was to avoid joining or after first joining the MIS.
Either way, his defection makes him an opponent, real or perceived, of the
Iranian regime, and this was the way press coverage described him. An
Iranian consular official visited him in detention prior to removal, and the
Iranian government was fully aware of his claims and the nature of his case.
In any event, counsel considers the reliance on credibility disingenuous,
where much of the material for this conclusion was based on untested
evidence led in camera and ex parte. Counsel also argues it is inaccurate to
describe the author as an agent of the regime and thus not a target of
abuses, as being a defector and providing security intelligence to Canada,
he will more likely than not be regarded as a regime opponent. If, as is
suggested, the author was simply a "discovered" undercover agent, he would
not have resisted removal, in detention, for nine years. In addition, an
alleged move to restrict torture in Iran must be seen against the recent
admitted torture and killing of a Canadian national in that country. It is
more likely that opponents will be tortured and executed, rather than be
given a fair trial, which the State party provides no evidence of. Nor,
according to counsel, did the State party monitor the author's return to
Iran.
6.6 On the issue of the risk of torture or other forms of cruel treatment,
counsel observes that the Supreme Court found "unassailable" the conclusion
that the author only faced a minimal risk in the context of paying
"considerable deference" to the Minister's decision, who considered issues
"largely outside the realm of the reviewing courts". As to the actual risk
involved, counsel points out that it is impossible to "prove" what would be
likely to happen to him, but rather the author has made reasonable
inferences from the known facts, including the Iranian government's interest
in the case, the human rights violations in Iran against perceived regime
opponents, the public knowledge of his co-operation with Canadian officials
in releasing classified information, and so on.
6.7 On the issues of arbitrary detention and expulsion process within
articles 9, 13 and 14, counsel argues that the author was detained for five
years, under mandatory and automatic terms, before his detention review.
Under the Act's regime, security certification results in automatic
detention of non-citizens until the proceedings are completed, a person is
ordered deported and then remains in Canada for a further 120 days. No judge
made a decision to detain him, and habeas corpus was unavailable to him as a
non-citizen detained under immigration legislation, while his constitutional
challenge to the certification process was dismissed. Counsel points out
that it was open to the State party to use other removal processes that
would not have had these effects. She observes that the State party's
practice belies its assertion that detention is necessary on national
security grounds, as not all alleged terrorists are in fact detained.
Counsel emphasizes that in V.M.R.B., [FN19] detention was, in contrast to
the present regime, not automatic or mandatory, and weekly detention reviews
existed. Rather, counsel refers to Torres v Finland and A v Australia for
the proposition that non-citizens have the right to challenge, in
substantive terms, the legality of detention before a court promptly and de
novo, and then with reasonable intervals. [FN20] She observes that the
European Convention, under which the Chahal decision referred to by the
State party was adopted, specifically provides for detention for immigration
purposes.
-------------------------------------------------------------------------------------------------------------------------------
[FN19] Op.cit.
FN20 Case No 291/1998, Views adopted on 5 April 1990 and Case No 560/1993,
Views adopted on 30 April 1997. Counsel also cites, to similar effect,
Ferrer-Mazorra v United States, Inter-American Commission of Human Rights,
Report No 51/01 of 4 April 2001.
-------------------------------------------------------------------------------------------------------------------------------
6.8 Counsel observes, with respect to the author's application under section
40(1)(8) of the Act for release after passage of 120 days from the
deportation order, that release may be ordered if the person will not be
removed within a reasonable time and the release would not be injurious to
national security or others' safety. The Federal Court found that the onus
was on the author to show these two criteria were satisfied, however counsel
points out that both the trial court and the appellate court considered he
could be removed within a reasonable time were it not for his own repeated
recourse to the courts, and that thus he could not satisfy this branch of
the necessary requirements. The appellate court also found that as the
author had been detained for security reasons, and thus would normally have
to show "some significant change in circumstances or new evidence not
previously available" in order to be released under the detention review
mechanism � in counsel's view, this plainly does not satisfy the requirement
under the Covenant for a de novo review of detention.
6.9 Counsel rejects the State party's argument that the security certificate
"reasonableness" hearing in Federal Court was a sufficient detention review,
arguing that this hearing concerned only the reasonableness of the
certificate rather than the justification for detention. In addition, if
this hearing was a detention review, there would be no need for a further
detention review 120 days after a deportation order. In response to the
argument that the prolonged detention was caused by the author himself,
counsel responds that even if the security certificate "reasonableness"
hearing had been heard without interruption, it would have been months
before it was completed, a deportation inquiry undertaken and 120 days
passed so as to allow a detention review under section 40(1)(8). Counsel
observes that other cases less complicated than the author's have resulted
in detention reviews only becoming available well after a year. Finally,
counsel observes that the State party never assisted the author in finding
another country to which he could depart. He had no other alternative to
detention as he had no other country to which he could travel.
SUPPLEMENTARY SUBMISSION BY THE STATE PARTY
7.1 By submission of 15 October 2003, the State party argues that the
material advanced by counsel as to events subsequent to expulsion is
insufficient basis for a conclusion that the author was in fact detained,
disappeared, tortured or otherwise treated contrary to article 7, much less
for a conclusion that a real risk thereof existed at the time of expulsion.
The State party emphasizes that counsel acknowledges that he was not
mistreated upon arrival, and that the reporter's rumour that he "was
detained or killed" dated prior to his presentation to the State party's
embassy in Tehran. The State party adds that in the week 6 to 10 October
2003, a representative of the State party in Tehran spoke with the author's
mother, who indicated that he was alive and well, though receiving regular
medical treatment for an ulcer. According to the State party, the author's
mother had said that he was currently unemployed and leading a pretty normal
existence. No details of the possible confidentiality and other arrangements
of the discussion are given. The State party submits that it did not violate
the author's rights under the Covenant in expelling him to Iran. [FN21]
-------------------------------------------------------------------------------------------------------------------------------
[FN21] The State party also provided an article, dated 13 September 2003 and
entitled "Deported Iranian admits he lied", from the National Post
newspaper. In light of the State party's express statement that it "does not
rely on [the article]", the Committee does not refer to this article
further.
-------------------------------------------------------------------------------------------------------------------------------
7.2 The State party also disputes the reliance placed upon the decisions of
the Committee and other international bodies. With respect to the
Ferrer-Mazorra decision of the Inter-American Commission of Human Rights
that Cuban nationals who Cuba refused to accept could not be indefinitely
detained, the State party points out that in the present case there was no
automatic and indeterminate presumption of detention. Rather than being
detained on a "mere assumption", he was detained upon the dual Ministers'
security certification that he was a threat to the safety and security of
the Canadian public. In addition, in contrast to the Cuban case, there had
been a decision to remove him, and his detention was appropriate and
justified for that purpose.
7.3 With respect to the onus being found by the Federal Court to lie on the
author to justify his release under the section 40(1)(8) application, the
State party observes that the Minister had already satisfied the onus to
justify arrest, and thus the lengthy proceedings that had been undertaken
would have to be repeated if onus to justify continued detention lay with
the Minister. It is thus not arbitrary, having shown that there are
reasonable grounds to believe an alien is a member of a terrorist group, for
the onus to lie with that person to justify release. As to the court review
of detention required by the Committee in A v Australia, the State party
submits that the Federal Court "reasonableness" hearing, providing real
rather than formal review, satisfies this purpose. The length of these
proceedings, during which he was detained, was reasonable in the
circumstances, as delay was mainly due to the author's own decisions,
including his resistance to leaving the State party. The State party
continues that the Committee, in assessing the presumptive detention not
individually justified at issue in A v Australia, distinguished the V.M.R.B.
case, which case is more analogous one to the present case. In V.M.R.B., as
presently, an individual Ministerial assessment led to arrest of the
individual in question. That detention was reasonable and necessary to deal
with a person posing a risk to national security, and did not continue
beyond the period for which justification could be provided.
THE STATE PARTY'S FAILURE TO RESPECT THE COMMITTEE'S REQUEST FOR INTERIM
MEASURES OF PROTECTION
8.1 The Committee finds, in the circumstances of the case, that the State
party breached its obligations under the Optional Protocol, by deporting the
author before the Committee could address the author's allegation of
irreparable harm to his Covenant rights. The Committee observes that torture
is, alongside the imposition of the death penalty, the most grave and
irreparable of possible consequences to an individual of measures taken by
the State party. Accordingly, action by the State party giving rise to a
risk of such harm, as indicated a priori by the Committee's request for
interim measures, must be scrutinized in the strictest light.
8.2 Interim measures pursuant to rule 86 of the Committee's rules adopted in
conformity with article 39 of the Covenant, are essential to the Committee's
role under the Protocol. Flouting of the Rule, especially by irreversible
measures such as the execution of the alleged victim or his/her deportation
from a State party to face torture or death in another country, undermines
the protection of Covenant rights through the Optional Protocol.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
9.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 87 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
9.2 The Committee notes, with respect to the claim of arbitrary detention
contrary to article 9, the State party's contention that the claim is
inadmissible for failure to exhaust domestic remedies in the form of an
appeal to the Supreme Court with respect to his application for release
under section 40(1)8) of the Act. The Committee observes that, by law, the
author's ability to apply for release under this section only arose in
August 1998 following expiry of 120 days from the issuance of the
deportation order was made, that point being a total of five years and two
months from initial detention in the author's case. In the absence of any
argument by the State party as to domestic remedies which may have been
available to the author prior to August 1998, the Committee considers that
the author's claim under article 9 prior to August 1998 until that time is
not inadmissible for failure to exhaust domestic remedies. The author's
failure to pursue to the Supreme Court his application for release under
section 40(1)(8) however does render inadmissible, for failure to exhaust
domestic remedies, his claims under article 9 related to detention after
that point. These latter claims are accordingly inadmissible under article
5, paragraph 2(b), of the Optional Protocol.
9.3 The Committee notes that counsel for the author has withdrawn the claims
relating to conditions of detention on the grounds of non-exhaustion of
domestic remedies, and thus does not further address this issue.
9.4 The Committee observes that the State party argues that the remaining
claims are inadmissible, for, in the light of substantial argumentation
going to the merits of the relevant facts and law, the claims are either
insufficiently substantiated, for purposes of admissibility, and/or outside
the Covenant ratione materiae. In such circumstances, the Committee
considers that the claims are most appropriately dealt with at the merits
stage of the communication.
CONSIDERATION OF THE MERITS
10.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
10.2 As to the claims under article 9 concerning arbitrary detention and
lack of access to court, the Committee notes the author's argument that his
detention pursuant to the security certificate as well as his continued
detention until deportation was in violation of this article. The Committee
observes that, while the author was mandatorily taken into detention upon
issuance of the security certificate, under the State party's law the
Federal Court is to promptly, that is within a week, examine the certificate
and its evidentiary foundation in order to determine its "reasonableness".
In the event that the certificate is determined not to be reasonable, the
person named in the certificate is released. The Committee observes,
consistent with its earlier jurisprudence, that detention on the basis of a
security certification by two Ministers on national security grounds does
not result ipso facto in arbitrary detention, contrary to article 9,
paragraph 1. However, given that an individual detained under a security
certificate has neither been convicted of any crime nor sentenced to a term
of imprisonment, an individual must have appropriate access, in terms of
article 9, paragraph 4, to judicial review of the detention, that is to say,
review of the substantive justification of detention, as well as
sufficiently frequent review.
10.3 As to the alleged violation of article 9, paragraph 4, the Committee is
prepared to accept that a "reasonableness" hearing in Federal Court promptly
after the commencement of mandatory detention on the basis of a
Ministers'security certificate is, in principle, sufficient judicial review
of the justification for detention to satisfy the requirements of article 9,
paragraph 4, of the Covenant. The Committee observes, however, that when
judicial proceedings that include the determination of the lawfulness of
detention become prolonged the issue arises whether the judicial decision is
made "without delay" as required by the provision, unless the State party
sees to it that interim judicial authorization is sought separately for the
detention. In the author's case, no such separate authorization existed
although his mandatory detention until the resolution of the
"reasonableness" hearing lasted four years and ten months. Although a
substantial part of that delay can be attributed to the author who chose to
contest the constitutionality of the security certification procedure
instead of proceeding directly to the "reasonableness" hearing before the
Federal Court, the latter procedure included hearings and lasted nine and
half months after the final resolution of the constitutional issue on 3 July
1997. This delay alone is in the Committee's view too long in respect of the
Covenant requirement of judicial determination of the lawfulness of
detention without delay. Consequently, there has been a violation of the
auhtor's rights under article 9, paragraph 4, of the Covenant.
10.4 As to the author's later detention, after the issuance of a deportation
order in August 1998, for a period of 120 days before becoming eligible to
apply for release, the Committee is of the view that such a period of
detention in the author's case was sufficiently proximate to a judicial
decision of the Federal Court to be considered authorized by a court and
therefore not in violation of article 9, paragraph 4.
10.5 As to the claims under articles 6, 7, 13 and 14, with respect to the
process and the fact of the author's expulsion, the Committee observes, at
the initial stage of the process, that at the Federal Court's
"reasonableness" hearing on the security certification the author was
provided by the Court with a summary redacted for security concerns
reasonably informing him of the claims made against him. The Committee notes
that the Federal Court was conscious of the "heavy burden" upon it to assure
through this process the author's ability appropriately to be aware of and
respond to the case made against him, and the author was able to, and did,
present his own case and cross-examine witnesses.. In the circumstances of
national security involved, the Committee is not persuaded that this process
was unfair to the author. Nor, recalling its limited role in the assessment
of facts and evidence, does the Committee discern on the record any elements
of bad faith, abuse of power or other arbitrariness which would vitiate the
Federal Court's assessment of the reasonableness of the certificate
asserting the author's involvement in a terrorist organization. The
Committee also observes that the Covenant does not, as of right, provide for
a right of appeal beyond criminal cases to all determinations made by a
court. Accordingly, the Committee need not determine whether the initial
arrest and certification proceedings in question fell within the scope of
articles 13 (as a decision pursuant to which an alien lawfully present is
expelled) or 14 (as a determination of rights and obligations in a suit at
law), as in any event the author has not made out a violation of the
requirements of those articles in the manner the Federal Court's
"reasonableness" hearing was conducted.
10.6 Concerning the author's claims under the same articles with respect to
the subsequent decision of the Minister of Citizenship & Immigration that he
could be deported, the Committee notes that the Supreme Court held, in the
companion case of Suresh, that the process of the Minister's determination
in that case of whether the affected individual was at risk of substantial
harm and should be expelled on national security grounds was faulty for
unfairness, as he had not been provided with the full materials on which the
Minister based his or her decision and an opportunity to comment in writing
thereon and further as the Minister's decision was not reasoned. The
Committee further observes that where one of the highest values protected by
the Covenant, namely the right to be free from torture, is at stake, the
closest scrutiny should be applied to the fairness of the procedure applied
to determine whether an individual is at a substantial risk of torture. The
Committee emphasizes that this risk was highlighted in this case by the
Committee's request for interim measures of protection.
10.7 In the Committee's view, the failure of the State party to provide him,
in these circumstances, with the procedural protections deemed necessary in
the case of Suresh, on the basis that the present author had not made out a
prima facie risk of harm fails to meet the requisite standard of fairness.
The Committee observes in this regard that such a denial of these
protections on the basis claimed is circuitous in that the author may have
been able to make out the necessary level of risk if in fact he had been
allowed to submit reasons on the risk of torture faced by him in the event
of removal, being able to base himself on the material of the case presented
by the administrative authorities against him in order to contest a decision
that included the reasons for the Minister's decision that he could be
removed. The Committee emphasizes that, as with the right to life, the right
to be free from torture requires not only that the State party not only
refrain from torture but take steps of due diligence to avoid a threat to an
individual of torture from third parties..
10.8 The Committee observes further that article 13 is in principle
applicable to the Minister's decision on risk of harm, being a decision
leading to expulsion. Given that the domestic procedure allowed the author
to provide (limited) reasons against his expulsion and to receive a degree
of review of his case, it would be inappropriate for the Committee to accept
that, in the proceedings before it, "compelling reasons of national
security" existed to exempt the State party from its obligation under that
article to provide the procedural protections in question. In the
Committee's view, the failure of the State party to provide him with the
procedural protections afforded to the plaintiff in Suresh on the basis that
he had not made out a risk of harm did not satisfy the obligation in article
13 to allow the author to submit reasons against his removal in the light of
the administrative authorities' case against him l and to have such complete
submissions reviewed by a competent authority, entailing a possibility to
comment on the material presented to that authority. The Committee thus
finds a violation of article 13 of the Covenant, in conjunction with article
7.
10.9 The Committee notes that as article 13 speaks directly to the situation
in the present case and incorporates notions of due process also reflected
in article 14 of the Covenant, it would be inappropriate in terms of the
scheme of the Covenant to apply the broader and general provisions of
article 14 directly.
10.10 As a result of its finding that the process leading to the author's
expulsion was deficient, the Committee thus does not need to decide the
extent of the risk of torture prior to his deportation or whether the author
suffered torture or other ill-treatment subsequent to his return. The
Committee does however refer, in conclusion, to the Supreme Court's holding
in Suresh that deportation of an individual where a substantial risk of
torture had been found to exist was not necessarily precluded in all
circumstances. While it has neither been determined by the State party's
domestic courts or by the Committee that a substantial risk of torture did
exist in the author's case, the Committee expresses no further view on this
issue other than to note that the prohibition on torture, including as
expressed in article 7 of the Covenant, is an absolute one that is not
subject to countervailing considerations.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts as found by the Committee reveal
violations by Canada of article 9, paragraph 4, and article 13, in
conjunction with article 7, of the Covenant. The Committee reiterates its
conclusion that the State party breached its obligations under the Optional
Protocol by deporting the author before the Committee's determination of his
claim.
12. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy, including compensation. In the light of the circumstances of the
case, the State party, having failed to determine appropriately whether a
substantial risk of torture existed such as to foreclose the author's
deportation, is under an obligation (a) to make reparation to the author if
it comes to light that torture was in fact suffered subsequent to
deportation, and (b) to take such steps as may be appropriate to ensure that
the author is not, in the future, subjected to torture as a result of the
events of his presence in, and removal from, the State party. The State
party is also under an obligation to avoid similar violations in the future,
including by taking appropriate steps to ensure that the Committee's
requests for interim measures of protection will be respected.
13. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, the State party has undertaken to ensure to
all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant, and to provide an effective and
enforceable remedy in case a violation has been established, the Committee
wishes to receive from the State party, within 90 days, information about
the measures taken to give effect to the Committee's Views. The State party
is also requested to publish the Committee's Views.
_________________________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
Under rule 85 of the Committee's rules of procedure, Mr. Maxwell Yalden did
not participate in the examination of the case.
Two separate individual opinions signed by Mr. Nisuke Ando and Ms. Christine
Chanet and one combined dissenting opinion signed by Sir Nigel Rodley, Mr.
Ivan Shearer and Mr. Roman Wieruszewski are appended to the present
document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBER, MR. NISUKE ANDO
I am unable to share the Committee's conclusion that the facts in the
present case reveals violations by the States party of article 9, paragraph
4, as well as article 13 in conjunction with article 7.
With respect to article 13 of the Covenant, the Committee states "[i]t would
be inappropriate for the Committee to accept that, in the proceedings before
it, "compelling reasons of national security" existed to exempt the State
party from its obligation under that article to provide the procedural
protections in question." (10.7). In the Committee's view, the author should
have been provided with the same procedural protections as those provided to
Suresh, another Iranian in a similar situation. However, the reason why the
author has not been provided with the same procedural protections is that,
while Suresh successfully made out a prima facie case for risk of torture
upon his return to Iran, the author failed to establish such a case.
Considering that the establishment of such a case is the precondition for
the procedural protection, the Committee's conclusion that the author should
have been provided the same procedural protection is tantamount to the
argument that the cart should be put before the horse, which is logically
untenable in my opinion.
With respect to article 9, paragraph 4, the Committee admits that a
substantial part of the delay of the proceedings in the present case is
attributable to the author who chose to contest the constitutionality of the
security certification instead of proceeding to the "reasonableness" hearing
before the Federal Court. And yet, the Committee concludes that the
reasonableness hearing itself lasted nine and a half months and such a long
period does not meet the requirement of article 9, paragraph 4, that the
court may decide the lawfulness of detention "without delay". (10.3)
Nevertheless, the process of the Federal Court's reasonableness hearing
imposed a heavy burden on the judge to ensure that the author would be
reasonably informed of the cases against him so that he could prepare
himself for reply and call witnesses if necessary. Furthermore, considering
that the present case concerned expulsion of an alien due to "compelling
reasons of national security" and that the court had to assess various facts
and evidence, the period of nine and a half months does not seem to be
unreasonably prolonged. It might be added that the Committee fails to
clarify why it is inappropriate for the Committee to accept that "compelling
reasons of national security" existed for the State party in the present
case (10.7), since the existence of those reasons primarily depends on the
judgment of the State party concerned unless the judgment is manifestly
arbitrary or unfounded, which is not the case in my opinion.
[Signed] Nisuke Ando
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION BY COMMITTEE MEMBER, MS. CHRISTINE CHANET
I share the standing position of the Committee that the issue of an
administrative detention order on national security grounds does not result
ipso facto in arbitrary detention.
Nevertheless, if such detention is not to be regarded as arbitrary, it must
be in conformity with the other requirements of article 9 of the Covenant,
failing which the State commits a violation of the first sentence of article
9, paragraph 1, by failing to guarantee the right of everyone to liberty and
security of person.
Article 9 is not the only provision of the Covenant which, in my view,
should be given such an interpretation.
For example, the execution of a pregnant woman, a flagrant breach of article
6, paragraph 5, constitutes a violation of the right to life as set forth in
article 6, paragraph 1.
The same applies in the case of a person who is executed without having been
able to exercise the right to seek pardon, in breach of article 6, paragraph
4, of the Covenant.
This reasoning is also applicable to the articles in the Covenant which
begin in the first paragraph by setting forth a principle and, in the body
of the article, identify the means required to guarantee the right (article
10) ; these means take the form either of positive steps that the State must
take, such as ensuring access to a judge, or of prohibitions, as in article
6, paragraph 5.
Consequently, when a female prisoner has not had prompt access to a judge,
as required by article 9, paragraph 4 of the Covenant, there has been a
failure to comply with the first sentence of article 9, paragraph 1.
[Signed]: Christine Chanet
Adopted in English, French and Spanish, the French text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.
INDIVIDUAL OF COMMITTEE MEMBERS, SIR NIGEL RODLEY, MR. ROMAN WIERUSZEWSKI,
MR. IVAN SHEARER (DISSENTING)
We do not agree with the Committee's finding of a violation of article 9,
paragraph 4. The Committee seems to accept, albeit in language implying some
uncertainty, that the first four years of the author's detention did not
involve a violation of article 9, paragraph 4, since it was the author's
choice not to avail himself of the 'reasonableness' hearing procedure
pending the constitutional challenge (paragraph 10.4 above). The Committee
accepts that the 'reasonableness' hearing meets the requirements of article
9, paragraph 4. Accordingly, its finding of a violation is based on the
narrow ground that the 'reasonableness' hearing lasted nine and a half
months and that of itself involved a violation of the right to a judicial
determination of the lawfulness of the detention without delay. It offers no
explanation of why that period violated the provision. Nor is there anything
on the record it could have relied on. There is no evidence that the
proceedings were unduly prolonged or, if they were, which party bears the
responsibility. In the absence of such information or any other explanation
of the Committee's reasoning, we cannot join in its conclusion.
[Signed] Nigel Rodley
[Signed] Roman Wieruszewski
[Signed] Ivan Shearer
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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