Communication No. 42/1996
by: R. K. (name withheld)(represented by counsel)
of communication: 22 February 1996
Committee against Torture, established under article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
on 20 November 1997,
the following decision:
Decision on admissibility
author of the communication is Mr. Richard Kollo, a Liberian citizen
belonging to the Krahn ethnic group, born on 30 November 1967, currently
residing in Canada. He claims that his return to Liberia would constitute
a violation of article 3 of the Convention against Torture by Canada.
He is represented by counsel.
author states that his uncle, who raised him following the death
of his father when he was two years old, was politically active;
he was a member of the United Liberation Movement of Liberia (ULIMO).
In 1985, members of the Krahn community who supported a certain
political candidate were accused of electoral fraud. Opposing the
Krahn and in response to the alleged fraud, another political party
was founded in 1987: the National Patriotic Front of Liberia (NPFL).
author states that in 1990, his uncle was murdered by (military)
members of the NPFL. They also detained the author's cousin. After
these events, the author decided to seek refuge in the Red Cross
office. He paid someone to help him to go to Sierra Leone; he crossed
the border with five other persons. In Sierra Leone, the author
hid in an ULIMO office.
night, soldiers from the NPFL were searching for ULIMO members and
the author fled to Israel using his Liberian passport. During his
stay in Israel, someone stole his luggage and documents.
owner of the place where he was staying helped him to flee to Canada,
where he arrived on 8 February 1993. On 26 February 1994, the author
married a Canadian woman; a child was born on 19 April 1995.
after arriving in Canada, the author requested political asylum.
On 20 April 1994, his application was dismissed by the Immigration
and Refugee Board of Canada. The author applied to the Federal Court
of Canada for leave to appeal against the Board's decision. The
Court rejected his request. On 15 December 1995, a request lodged
by the applicant in pursuance of the post-claim risk assessment
process was rejected. The author was told to leave the country before
22 February 1996.
further appears from the communication that the author's wife is
sponsoring his application for immigration to Canada. On 20 December
1995, the immigration authorities rejected the author's request
for his expulsion to be suspended pending the outcome of the procedure
for examination of the immigration application, which was already
under way. The author complains that the Canadian authorities refuse
to accept the bona fide character of his marriage. Immigration officials
are said to have consistently refused to grant his wife an interview
to prove the validity of the marriage.
to the author, if he returns to Liberia he will be killed like his
uncle. To substantiate his statements concerning the serious human
rights violations occurring in Liberia, where several factions are
confronting one another, the author quotes several extracts from
a report by Amnesty International, as well as Country Reports on
Human Rights Practices from 1994.
author claims that his return to Liberia would constitute a violation
of article 3 of the Convention against Torture by Canada. He requests
the Committee to ask Canada not to expel him while his communication
is under consideration by the Committee.
of the State party
4. On 19
March 1996, the Committee forwarded the communication to the State
party through its Special Rapporteur to enable it to draw up its
comments, and requested it not to expel the author while his communication
was under consideration by the Committee; the request was granted.
a note dated 9 September 1996, the State party contests the admissibility
of the communication. It points out that the author had not exhausted
the domestic remedies available before submitting his communication
to the Committee against Torture. In addition, his communication
did not demonstrate the minimum justification needed to meet the
requirements of article 22 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
State party explains that throughout the Canadian immigration process,
the author essentially advanced the same allegations as those he
is putting forward in support of his communication to the Committee
against Torture. He claimed that his uncle had been a member of
ULIMO and had been killed by the NPFL, an armed faction which opposed
it, on account of his political activities. The author claimed that,
because of his relationship with his uncle, his life or his safety
would be in danger if he returned to Liberia. Specifically, he feared
that he would be tortured.
State party points out that the investigations carried out by the
Canadian authorities revealed major gaps concerning fundamental
and crucial aspects of the author's claims. It was impossible to
establish that he was of Liberian origin and that his return to
Liberia would entail genuine risks for his life or his safety. Inconsistencies
in his statements seriously undermined his credibility and compounded
an absence of objective proof of his allegations.
State party holds that various domestic remedies were open to the
author to challenge the conclusions of the Canadian authorities.
Those remedies, had he availed himself of them, would have enabled
him to demonstrate as far as possible that the inconsistencies noted
in his statements were merely apparent, and that his claims were
backed up by a rational explanation of which those responsible for
taking a decision on his case were unaware. Yet he had not maintained
and pursued a request for judicial review by the Federal Court,
and he had not made a request for judicial review by the Federal
Court of two other decisions taken by the Canadian authorities.
Nor had he made any request for a ministerial waiver on humanitarian
remedies, had the author pursued them, might have brought him relief
within a reasonable time limit. All of them offered him a chance
to correct and explain the gaps in his dossier before the date of
application of the expulsion measure against him, and the remedies
ultimately held out the possibility that he would be able to settle
State party claims that, because of Mr. Rollo's failure to pursue
those remedies before appealing to the Committee against Torture,
his communication fails to satisfy the condition set out in article
22, paragraph 5 (b) of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. It calls on
the Committee to declare the communication inadmissible.
his reply, dated 20 February 1997, counsel describes as speculation
the State party's comments that, had he availed himself of the remedies
referred to, the author would have had an opportunity to demonstrate
that the Government was mistaken and to win his case.
expresses surprise that the State party should argue that the author
had not exhausted all remedies, when the Government itself had summoned
him to the local immigration office to tell him to arrange for his
departure. On that occasion, an immigration official confirmed to
the author that he must report for expulsion to Liberia. Since that
confirmation had been given by an immigration official responsible
for expulsions, the author was in no doubt that his deportation
to Liberia was imminent, and that it was to take place shortly after
the first summons. Indeed, if it had not been for the appeal lodged
by the author with the Committee against Torture, arrangements would
have been made and the author would already have been deported to
Liberia without further delay. There is no doubt in the applicant's
mind – indeed, Canada's machinations in that regard were quite
clear – that the department responsible for expulsions was
preparing to deport him.
is submitted that the Canadian Government had every opportunity
to remedy its failure to meet its international obligations but
that its bad faith and totally negative attitude to the author's
dossier was illustrative of its lack of will to assist him. In that
regard, counsel draws attention to the fact that the author had
first exhausted all the refugee status determination procedures,
and that he had been given a negative response. Moreover, the Canadian
Government itself admits that many applicants in the same circumstances
as the author and from the same country are granted refugee status.
the request made to the Federal Court for judicial review, counsel
explains that lodging such a request in no way guarantees success,
as a very small percentage of such requests are granted. Moreover,
even if in theory applicants have only to show that they have a
"fairly arguable case", leave to appeal is granted in fewer and
fewer cases. In principle, that makes the appeal procedure in question
an illusion for the vast majority of refugees, including the author.
any event, since the applicant was married, he had been advised
to lodge a request for sponsorship on grounds of marriage, which
in view of his circumstances had a good chance of success; but the
request had not been successful.
the State party's claims that the author had an alleged right to
appeal to the Federal Court, counsel states that in actual fact
such appeals are non-existent, time-barred or totally ineffective
and illusory, since they are inaccessible and discretionary and
in no way prevent the Canadian Government from going ahead with
the deportation of the author in any event.
points out that the Canadian Government is very well aware that
access to such procedures is almost never granted in practice, and
that in any event they do not prevent the Canadian Government from
proceeding with the expulsion.
and proceedings before the Committee
considering any claims contained in a communication, the Committee
against Torture must decide whether or not it is admissible under
article 22 of the Convention.
accordance with article 22, paragraph 5 (b) of the Convention, the
Committee does not consider any communication unless it has ascertained
that the author has exhausted all available domestic remedies; this
rule does not apply where it has been established that the application
of the remedies has been or would be unreasonably prolonged or that
it is unlikely to bring effective relief to the alleged victim.
In the present case, the author acknowledges that he has not pursued
a request for judicial review by the Federal Court and has not lodged
a request for a ministerial waiver on humanitarian grounds. Even
if the author claims that these remedies would be illusory, he has
furnished no evidence that they would be unlikely to succeed. The
Committee notes that the conditions laid down in article 22, paragraph
5 (b), of the Convention have not been met.
Committee consequently decides:
the communication is inadmissible;
this decision shall be communicated to the author of the communication
and to the State party.
English, French, Spanish and Russian, the French text being the