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1.1 The author of the
communication, dated 13 December 2001, is Mr. Steven Romans, a Jamaican
national born on 30 October 1965. He is a permanent resident of Canada,
however subject to a deportation order as at the time of submission of the
communication. He claims that his deportation to Jamaica would constitute a
violation by Canada of his rights under articles 6, 7, 10 and 23 of the
Covenant. He is represented by counsel.
1.2 On 19 December 2001, the Committee, acting through its Special
Rapporteur on New Communications, pursuant to Rule 86 of the Committee's
Rules of Procedure, requested the State party not to deport the author to
Jamaica until the Committee had considered the case.
1.3 On 26 May 2003, the Special Rapporteur on New Communications decided to
separate consideration of the admissibility and the merits of the case.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 The author emigrated from Jamaica to Canada in 1967, then under two
years old. He arrived as a permanent resident and has since retained that
status. Since 1967, he has lived continuously in Canada, save for one trip
to Jamaica when he was eleven years old. The author's entire family,
including his mother, father and two brothers are also in Canada and have
lived there for over thirty years. There are no remaining relatives in
Jamaica.
2.2 In June 1991, the author was convicted of breaking and entering with
intent. In July 1992, he was convicted of trafficking in narcotics. In
December 1992, he was convicted of possession of narcotics for purposes of
trafficking. By 1995, he had been diagnosed to suffer from chronic paranoid
schizophrenia, and to have both substance abuse and personality disorders.
In December 1996, he was convicted of assault and of assault causing bodily
harm.
2.3 On 7 July 1999, after a deportation inquiry, an immigration adjudicator
issued a deportation order on the ground of these offences and ordered the
author's deportation from Canada. On 30 November 1999, the Immigration and
Refugee Board (Appeal Division) dismissed his appeal that having regard to
all the circumstances of the case, he should not be removed. The Appeal
Division accepted that the "probable cause" of the author's crimes was
mental illness, but found that there was a "very high probability" that he
would re-offend, and that his offences would be of violent nature. No
medication had been demonstrated to control the mental illness, even when he
was detained and medication could be administered regularly. It accepted
that there would be "great emotional hardship" inflicted on his family in
the event of deportation, but found, on balance of probabilities, that there
would not be undue hardship upon him in that event.
2.4 On 11 June 2001, the Federal Court (Trial Division) dismissed the
author's application for judicial review of the Appeal Division's decision.
The Court considered that it was not a violation of fundamental justice,
contrary to section 7 of the Canadian Charter of Rights and Freedoms, [FN1]
to deport a permanent resident who had resided in Canada since early
childhood and had no establishment outside of Canada, and where the
permanent resident suffered from a serious mental illness so serious that he
was unable to function in society. The Court also rejected the contention
that the Appeal Division's findings of fact were patently unreasonable.
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[FN1] Section 7 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."
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2.5 On 18 September 2001, the Court of Appeal dismissed the author's appeal
against the Federal Court's decision, holding that the author's
circumstances did not give him an absolute right to remain in Canada. The
Appeal Division had properly balanced the competing interests before it and
could, on the evidence, justifiably conclude that deportation was in
accordance with principles of fundamental justice. On 29 November 2001, an
Immigration Officer refused the authors' application to remain in Canada on
humanitarian and compassionate grounds. On 6 December 2001, the Supreme
Court rejected the author's application for leave to appeal, with costs.
2.6 At the time of the submission of the communication, the author had
initiated an application for judicial review of the Immigration Officer's
decision, as well as an application to re-open the appeal of the deportation
order to the Appeal Division. However, none of these proceedings had the
effect of automatically staying the deportation order.
THE COMPLAINT
3. Counsel contends that the author's deportation would violate articles 6,
7, 10 and 23 of the Covenant, observing that a State's right to deport a
non-citizen is not absolute, but subject to restrictions under international
human rights law. He refers to the Committee's Views in Winata v Australia,
[FN2] as well as the jurisprudence of the Committee against Torture under
article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
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[FN2] Case No 930/2000, Views adopted on 16 August 2001.
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3.2 On articles 6, 7 and 10, counsel contends it is clear that the author is
mentally incompetent to act on his own and to care for himself, a fact
recognized by the Appeal Division. In contrast to the medical facilities
available in Canada, deportation to Jamaica would leave the author with
virtually no treatment facilities. Bellevue Hospital in Jamaica had advised
that it could not treat violent patients, and such persons are placed in
regular prison facilities. There are substantial grounds to believe that due
to the author's mental illness and the state of Jamaican prisons, he would
be subjected to physical and emotional abuse. Counsel contends that Jamaica
has a long history of mistreating the mentally ill, from targets of random
violence by police to inhuman treatment in correctional facilities and lack
of rehabilitative treatment. His family thus fears for his life and physical
integrity. Counsel invokes the judgment of the European Court of Human
Rights in D v United Kingdom, [FN3] where it was held that to expel a
non-citizen enjoying AIDS treatment to a country without care facilities
amounted to a breach of article 3 of the European Convention; he maintains
that the present case is even stronger in light of the duration and width of
the author's family in Canada.
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[FN3] Application 30240/1996, judgment of 2 May 1997.
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3.3 On article 23, counsel contends that there are no grounds upon which a
limitation on the author's rights to family life and protection of the
family can be justified. In counsel's view, the author does not represent a
threat to society, as found by the Appeal Division. His longest criminal
sentence did not exceed 12 months. Two drug convictions resulted from sales
to finance his own habit, three sexual assault convictions only resulted in
a suspended sentence, while eight convictions concerned non-compliance with
court orders. The person most harmed by these offences is the author
himself, rather than others. He remains in need of a treatment plan to allow
him to function properly in Canadian society, and will remain in detention,
under psychiatric treatment, until this has been achieved.
3.4 The author's removal would leave his family, who care deeply for him,
without a son and brother and cause grief and loss. Maintaining close family
ties is particularly important to people of colour, given difficulties in
Canadian society. His family, willing and able to support the author in
Canada, would be unable to do so in Jamaica. Deportation would be equivalent
to exile, given the length of his residence in Canada. Counsel refers to
jurisprudence of the European Court, pursuant to which expulsion of
long-term residents with strong family ties must be particularly justified.
[FN4] He argues that deportation of the author in view of his mental
illness, inability to care for himself, absence of other family and
non-serious offending would be disproportionate.
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[FN4] Beldjoudi v France Application No 12083/86, judgment of 26 March 1992.
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THE STATE PARTY'S SUBMISSIONS ON THE ADMISSIBILITY OF THE COMMUNICATION
4.1 By submissions of 16 May 2002, the State party disputed the
admissibility of the communication, contending that it was inadmissible for
failure to exhaust domestic remedies and, with respect to articles 6 and 10,
for lack of substantiation.
4.2 On exhaustion of domestic remedies, the State party argued that the
author was currently pursuing two remedies which, if successful, would allow
him to remain in Canada. Firstly, upon application by a permanent resident
prior to a deportation, the independent Appeal Division could re-open an
appeal and exercise its discretion in a different way. On 13 December 2001,
the author had filed a motion for re-opening, which was granted on 24
January 2002. A date for hearing of the re-opened appeal had not been set.
Applications for judicial review of any adverse decision would lie, with
leave, to the Federal Court, and in turn to the Court of Appeal and the
Supreme Court. Stays preventing deportation may be sought at these points.
Secondly, as to the judicial review proceedings concerning the decision of
the Immigration Officer, the Federal Court had granted leave to apply for
judicial review on 20 March 2002. The substantive application for judicial
review would be heard on 12 June 2002, and any adverse decision would be
appealable as described. A positive decision would result in the case being
sent back for re-determination.
4.3 As the Committee has repeatedly held that judicial review constitutes an
available and effective remedy, [FN5] the State party considered the
communication to be inadmissible.
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[FN5] See, for example, Badu v Canada Case No 603/1994, Nartey v Canada Case
No 604/1994 and Adu v Canada Case No 654/1995, Decisions adopted on 18 July
1997.
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4.4 While not admitting a prima facie violation of articles 7 and 23, issues
in relation to which are currently before domestic tribunals, the State
party argued that the claims under articles 6 and 10 were unsubstantiated,
for purposes of admissibility. The author had presented no evidence that
death would be a necessary and foreseeable consequence of a return to
Jamaica, while an alleged deterioration of his condition after return was
largely speculative. The allegations under article 6 were not materially
different to the claims under article 7, which were currently sub judice. In
terms of article 10, the author made no allegation of mistreatment in
Canadian custody, while his allegation of detention in a Jamaican
pentitentiary and abuse there was speculative. Again, these claims were also
subsumed under the article 7 issues presently sub judice.
4.5 By further submission of 20 August 2002, the State party noted that the
author's application for judicial review of the Immigration Officer's
decision had been heard as scheduled, while his appeal against deportation
was scheduled for hearing by the Appeal Division on 6 September 2002. Either
of these decisions could give rise to appeal, with stays on execution being
available pending the appeal. Thus, the author was not presently at risk of
removal, as no final and enforceable removal order is in place. Given the
requirement to exhaust domestic remedies prior to submission of a
communication, the communication should thus be declared inadmissible.
The author's comments
5. On 14 March 2003, counsel responded to the State party's admissibility
submissions, arguing that, at the time of submission, all foreseeable
remedies had been exhausted: the Supreme Court had dismissed the application
for judicial review, while immigration officials were under no obligation to
consider the then pending application for humanitarian and compassionate
consideration prior to deportation. After the issuance of interim measures,
counsel had obtained leave of the Appeal Division to reconsider its
decision. The Appeal Division then reconfirmed, on 3 January 2003, its
decision to dismiss the application. Counsel then applied for judicial
review in the Federal Court of that decision, while the Federal Court's
decision on the application for judicial review of the Immigration Officer's
decision was still being awaited. Accordingly, counsel sought a three month
deferral of a determination of admissibility to await these decisions.
SUPPLEMENTARY SUBMISSIONS BY THE PARTIES
6.1 By submission of 10 September 2003, the State party advised that on 28
May 2003, the author had been granted leave to apply for judicial review of
the Appeal Divisions dismissal of the author's fresh appeal. On 6 August
2003, this appeal, which included a constitutional challenge to the relevant
legislation, was heard and judgment was reserved. In the second proceedings
concerning judicial review of the Immigration Officer's decision remained
outstanding. Accordingly, both sets of domestic proceedings remained afoot
and the communication should be declared inadmissible.
6.2 By submission of 13 October 2003, the State party advised that the
Federal Court had, on 6 October 2003, granted the author's application for
judicial review of the Immigration Officer's decision on his application to
remain in Canada on humanitarian and compassionate grounds. Accordingly, the
application had been remitted for reconsideration by a different immigration
officer. The State party thus argued that the author continues to have
failed to exhaust domestic remedies, and the communication is inadmissible.
6.3 By letter of 27 October 2003, the author responded arguing that an
application to remain on humanitarian and compassionate grounds is not an
effective remedy, as it takes several years to be considered, is
discretionary on the part of the immigration officer, and would, in the
present case, anyway have to be refused on the grounds that the author is
inadmissible in Canada as a result of his convictions. With respect to the
ongoing judicial review proceedings concerning the Appeal Division's
dismissal of the reopened appeal, the author observes that three levels of
the Canadian courts have already determined "on virtually the same facts"
that his removal would be consistent with Canadian law. In any event, the
outstanding judicial review proceedings do not operate to block removal.
6.4 By submission of 3 March 2004, the State party advised that on 29
December 2003, the Federal Court granted the author's application for
judicial review of the Appeal Division's dismissal of his reopened appeal.
The State party's Government waved its right to appeal the decision, with
the result that the appeal will be remitted to the Appeal Division for
redetermination by a differently constituted panel. The State party also
advised that the author's application to remain in Canada on humanitarian
and compassionate grounds was still outstanding, and that for both reasons
the communication remains inadmissible for failure to exhaust domestic
remedies. No further comment has been received from the author.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
7.2 The Committee recalls that its assessment of the requirement to exhaust
available and effective domestic remedies, as required by article 5,
paragraph 2(b), of the Optional Protocol takes place at the time of its
consideration of the communication. The Committee observes that according to
the most recent information before it the author's appeal has been remitted
to the Appeal Decision. An adverse decision by that body would itself be
subject to judicial review in the courts. Accordingly, the communication is
inadmissible on the ground of failure to exhaust domestic remedies.
7.3 In the light of this finding, the Committee need not examine further
arguments as to the admissibility of the communication, including the extent
to which an application to remain on humanitarian and compassionate grounds
should be considered a remedy which must be exhausted for purposes of
article 5, paragraph 2(b), of the Optional Protocol.
8. The Committee therefore decides:
a) that the communication is inadmissible under article 5, paragraph 2(b),
of the Optional Protocol;
b) that this decision shall be communicated to the author and to the State
party.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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