by : Z.Z. (name withheld) [represented by counsel]
victim: The author
of communication: 11 November 1998
Committee against Torture, established
under Article 17 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
on 15 May 2001,
concluded its consideration of communication No. 123/1998,
submitted to the Committee against Torture under article 22 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
taken into account all information made available to it by
the author of the communication, his counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
author of the communication, dated 11 November 1998, is Mr. Z.Z.,
a citizen of Afghanistan, born on 8 July 1948. He was deported
to Afghanistan on 27 November 1998, following a conviction for
drug offences in Canada. He claims that his deportation to Afghanistan
constitutes a violation by Canada of the Convention. He is represented
accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on
11 December 1998 and requested the latter to provide observations
on the admissibility and merits of the communication.
facts as presented by the author
author allegedly fled Afghanistan in 1977 at the time of the armed
intervention of the Soviet Union in the Afghan conflict. His brother
was killed by Soviet forces and he feared the same fate. He went
to Iran where he remained for two years without legal status.
He then travelled to Pakistan where he also remained two years
without a legal status. From Pakistan, the author decided to enter
India where he requested to be recognized as a refugee by UNHCR.
He was allegedly recognized as a Convention refugee but did not
keep any evidence of it. However, having no work permit and no
right to education, the author decided to join his brother who
had been recognized as a refugee in Canada.
author arrived in Canada in 1987 on a false passport. Upon his
arrival in Montreal, he applied for asylum. He was found to have
a credible basis for his refugee claim, which entitled him to
apply for permanent residence, and he became a permanent resident
29 June 1995, the author, found guilty of importing narcotics,
was sentenced to 10 years' imprisonment. On 10 April 1996, the
Minister of Citizenship and Immigration declared him a "danger
to the public in Canada" and decided that he should therefore
be removed to his country of origin. The Minister argued that
the serious criminal offence of which he had been convicted and
the need to protect Canadian society outweighed any humanitarian
and compassionate considerations. The author applied for review
of this decision before the Federal Court but his application
4 November 1998, the author attended a detention review hearing
during which he was told that his detention would continue and
that his removal would take place on 14 November 1998. The same
day, counsel for the author faxed a request to the Removal Officer
to defer the deportation until a proper risk assessment had been
made, referring to recent documentation about the situation in
request being denied, the author sought a stay of the expulsion
order in the Federal Court Trial Division, arguing that because
of his ethnic background, he would be subjected to torture if
removed to Afghanistan. On 12 November 1998, the Court refused
the stay. Finally, on 13 November 1998, the author applied for
an interim injunction before the Ontario Court of Justice to stay
the execution of the deportation order. The application was dismissed
because the matter had already been decided by the Federal Court.
his submission to the Committee dated 11 November 1998, the author
argued, in relation to the issue of exhaustion of internal remedies,
that as soon as the Court rendered its decision on the application
for the stay of removal, there would be no other internal remedy
author alleges that the State party did not make a proper risk
assessment at the time of the decision in April 1996 nor any subsequent
review of the risk assessment, despite the existence of major
political and human rights problems in the country to which the
author was to be deported. The Taliban had become a major actor
in the Afghan political situation and conditions in the country
had changed dramatically as a consequence.
author is a Sunni Muslim and a member of the Tajik ethnic group.
The bigger part of Afghanistan is at present controlled by the
Taliban who, although Sunnis, are of a different ethnic group,
author states that Afghanistan continues to experience civil war
and political instability and that ethnic divisions are increasingly
influencing the fighting. The Taliban, who emerged as a military
and political force in 1994, are an ultra-conservative Islamic
movement. In January 1997, they were controlling two thirds of
Afghanistan including Kabul, the capital.
In addition to the general situation of insecurity caused by the
internal armed conflict between the Taliban and other factions,
the human rights situation in the territory controlled by the
Taliban is of serious concern. According to the author, there
is discrimination between the different ethnic groups. The Taliban
have detained hundreds of people solely because of their ethnic
origin. Among these minority groups are the Uzbeks, Tajiks, Hazaras,
Shi'ite Muslims and Turkmen. The author submits that a significant
number of Tajiks have been detained and some of them have disappeared.
The author also refers to Amnesty International reports stating
that Taliban guards have beaten and kicked people in custody and
that long-term prisoners have been severely tortured. It is also
submitted that according to a Human Rights Watch report on one
of the worst massacres of civilians committed by the Taliban,
in August 1998 when they took Mazar-el-Sharif, the author's city
of origin, in the days after the incident the Taliban searched
and arrested all males of Hazara, Uzbek and Tajik origin in the
city. Moreover, since the city jail was overcrowded, thousands
of the detainees were transferred to other cities in large container
trucks holding 100-150 persons. In two known instances, nearly
all the men in the container were asphyxiated or died of heat
the time of the submission of his communication, the author alleged
that he would be at serious risk of torture if he were removed
to Afghanistan, and that the decision to forcibly remove him to
Afghanistan would entail a violation of article 3 of the Convention.
It is also submitted that no competent official of the State party
has properly assessed whether there was a risk of torture. As
a result, there has been both a substantive and a procedural violation
of the Convention.
author recalls that the specific prohibition on removing persons
to where they may be at risk of torture is explicitly enshrined
in article 3 of the Convention against Torture. In determining
whether article 3 should apply, the Committee should base itself
on whether there is a consistent pattern of gross, flagrant or
mass violations of human rights in the country concerned and whether
the author runs a personal risk, which may emanate from his/her
class or character.(1)
party's observations on the admissibility and merits
a submission dated 14 December 1999, the State party transmitted
to the Committee its observations on both the admissibility and
merits of the case.
State party submits that the communication was inadmissible as
the author had not exhausted the internal remedies as required
by article 22 (5) (b) of the Convention and rule 91 of the Committee's
rules of procedure. It underlines that it is a fundamental principle
of international law that local remedies must be exhausted before
a remedy is sought from an international body. This principle
gives the State an opportunity to correct internally any wrong
that may have been committed before the State's international
responsibility is engaged.
the Immigration Act, judicial review of decisions are available
before the Federal Court Trial Division, and it is submitted that
an applicant does only need a "fairly arguable case" or "a serious
question to be determined" for leave to be granted.
State party argues that the Committee, as well as other international
tribunals, consider judicial review as an available and effective
remedy. In the case M.A. v. Canada (CAT/C/14/D/22/1995),
the author was granted refugee status but later declared a threat
to Canadian security so that he had to be removed from Canada.
The communication was declared inadmissible because the author
was in the process of challenging the removal decision by way
of judicial review. The European Court of Human Rights has a similar
jurisprudence (2) and considers that judicial review provides
a sufficiently effective remedy in asylum cases.
the present case, the author's application to the Federal Court
Trial Division for leave for judicial review of the Minister's
opinion that the author constituted a danger to the public was
denied on 8 September 1997. On 5 November 1998, the author applied
to the Federal Court Trial Division against the decision of the
Removal Officer not to defer deportation. He subsequently submitted
the present communication to the Committee on 11 November 1998
before the Federal Court could examine his application.
the author failed to perfect the application for judicial review
by filing an Application Record within the prescribed period.
In this regard, the State party again refers to the jurisprudence
of the European Court of Human Rights according to which complainants
have to respect and follow domestic procedures also with respect
to time limits before bringing an international claim.(3)
State party argues that the Federal Court could have examined
the case if the application of 5 November 1998 had been perfected
and leave had been granted, which could have led to a reconsideration
of the case.
author also brought an action in the Federal Court Trial Division
challenging the constitutionality of the provision denying him
the opportunity to claim refugee protection. He also argued that
the Immigration Act and the immigration process are contrary to
the Canadian Charter of Rights and Freedom because neither requires
a risk assessment. The author, however, did not continue this
action, which was, at the time of the submission, still pending.
He could indeed have instructed his lawyer to proceed on his behalf.
The State party argues in this connection that the author's deportation
does not render his rights or pending actions ineffective or moot.
State party also submits that the author could have sought a humanitarian
and compassionate assessment of his case. It refers to X v.
Sweden where the Committee found that such an application
was an effective remedy since the Appeals Board in that case had
the competence to grant the authors a residence permit.(4)
This option was available to the author prior to the deportation
and there was no time limit for submitting it.
The State party deems that the above-mentioned remedies are effective
in the sense of article 22 (5) of the Convention. The author should
therefore have pursued them prior to petitioning the Committee
and has failed to exercise due diligence in not doing so.
On the merits
4.11 As for the risk faced by the author, the State party refers
to the principle, laid down by the Committee in the case Seid
Mortesa Aemei v. Switzerland,(5) that it has to determine
"whether there are substantial grounds for believing that [the
author] would be in danger of being subjected to torture [in the
country to which he is being returned]" and "whether he would
be personally at risk". The State party also recalls that the
burden of proof is on the author to establish that there are substantial
grounds to believe that he or she would be personally at risk
of being subjected to torture.
The State party submits that since the protection provided by
article 3 is, according to the Committee's jurisprudence, absolute,
irrespective of the author's past conduct, the determination of
risk must be particularly rigorous. To that purpose, it refers
to a decision of the European Court of Human Rights where it is
stated with regard to article 3 of the European Convention on
Human Rights that "the Court's examination of the existence of
a risk of ill-treatment in breach of Article 3 at the relevant
time must necessarily be a rigorous one in view of the absolute
character of this provision".(6)
In order to assess the risk of torture faced by the author, the
State party contends that the following factors are pertinent:
(a) whether the State concerned is one in which there is evidence
of a consistent pattern of gross, flagrant or mass violation of
human rights; (b) whether the author has been tortured or maltreated
by or with the acquiescence of a public official in the past;
(c) whether the situation referred to in (a) has changed; and
(d) whether the author has engaged in political or other activity
within or outside the State concerned which would appear to make
him particularly vulnerable to the risk of being tortured.
Contrary to the author's allegations, the State party emphasizes
that the risks faced by the author upon his return to Afghanistan
were assessed by the Minister of Citizenship and Immigration in
April 1996 when considering whether the author was a danger to
the public. The jurisprudence cited by the author to support his
argument (7) has not always been followed and is now under
appeal before the Federal Court of Appeal. Moreover, the State
party submits that it is not for the Committee to question its
internal procedures on risk assessment. Finally, such a risk assessment
was also evaluated by the Federal Court Trial Division on the
request to stay the deportation.
The State party considers that the author has not demonstrated,
on a prima facie basis, that he is personally at risk of torture
because of his ethnic origin. Although it is not denied that there
are violations of human rights perpetrated by the Taliban, there
is no indication that the Tajiks are specifically targeted. The
State party refers to information from the Research Directorate
of the Canadian Immigration and Refugee Board stating that persecution
is rather aimed at the Shia Hazar people and the Turkish-speaking
supporters of General Dostam. The same source of information underlines
that, "generally, people who are suspected of supporting …
the Northern Alliance would be under tight surveillance from the
Taliban security forces. Ethnic affiliation is not a primary reason
for being targeted by the Taliban …; however, Tajiks living
under the Taliban rules are careful and venture in the streets
of Kabul with caution". Moreover, the report indicates that Tajiks
can freely and safely live in the north of Afghanistan while the
ones living on the territory controlled by the Taliban are not
systematically targeted for surveillance. There is also no evidence
that torture is routinely practised by the Taliban against the
Tajiks, the author himself acknowledges in his communication that
"torture does not appear to be a routine practice in all cases".
The State party further argues that the author did not bring any
evidence that he would be personally at risk of torture in Afghanistan.
There is no evidence that the author was ever arrested and the
reasons for which he left his country in 1977 no longer exist.
Neither has the author stated that persons in his entourage were
persecuted or tortured because they were Tajiks, nor has the author
been engaged in a political activity that could draw the Taliban's
attention. The facts alleged therefore do not reveal a prima facie
case that his expulsion would expose him to the risk of torture.
The State party submits that the present communication is based
on exactly the same facts as those presented to the Minister of
Citizenship and Immigration when he made his "danger opinion"
and those presented on judicial review before the Federal Court
Trial Division. As a consequence, since the national proceedings
did not disclose any manifest error or unreasonableness and were
not tainted by abuse of process, bad faith, manifest bias or serious
irregularities, the Committee should not substitute its own findings
on whether the author risks being subjected to torture in Afghanistan;
it should not become a "fourth instance" that would re-examine
the findings of facts by the internal authorities.
As a consequence, the State party is of the view that, on the
basis of the criteria referred to in paragraph 4.13 above, there
is no indication: (a) that the author was tortured or maltreated
by or with the acquiescence of a public official in Afghanistan
in the past; (b) that he is currently being sought by Afghan authorities;
(c) that persons in his immediate circle were arrested or tortured
because they are Tajiks; (d) that ethnic Tajiks are specifically
targeted for mistreatment; and (e) that he has been involved in
any high-profile activity that could draw the attention of the
The State party therefore requests that, if the communication
is declared admissible, it is declared without merits.
a submission of 21 January 2000, counsel for the author made her
comments on the observations of the State party. In connection
with the exhaustion of internal remedies, counsel recalls that
the author was granted permanent residence in 1992 and that he
was later convicted of a criminal offence leading to the deportation
order issued against him. Under the Immigration Act, a person
can be deported from Canada and denied access to the refugee procedure
if the Minister certifies the person as a "danger to the public
in Canada". In this case, the only issue is whether or not the
person is a danger to the public in Canada, not whether the person
is at risk. As a result, when such a decision is taken, the person
no longer has a right to appeal to the Appeal Division and is
also denied a right to make a refugee claim.
reiterates that the procedure for certifying that a person is
a danger to the public in Canada is not an adequate assessment
of risk. She considers that the position of the State party has
consistently been that, in certain circumstances, persons who
constitute a danger to the public can be deported to their countries
of origin even when there is a risk of torture. This was also
the substance of the ruling of the Court of Appeals in the case
Suresh v. M.C.I. (Minister of Citizenship and Immigration).
The interpretation of the Federal Court of Appeal is that the
Convention does not prohibit in all cases deportation to countries
where there is a significant risk of torture. It is therefore
counsel's contention that the official position of the State party,
as substantiated by the second highest court in Canada, is that
persons can be deported to countries where there would be a substantial
risk of torture if there is a compelling State interest. Counsel
submits that the Committee must act urgently to make its view
clear to the State party that removal to countries where there
is a risk of torture is not permitted under any circumstances.
argues that, as a result of the deportation and the fact that
she is unable to receive instructions from the author, the obligation
to challenge the decision to execute deportation by internal remedies
has become moot. The same may be said for the questioning of the
constitutionality of the provision denying the author the opportunity
to claim refugee protection. As a consequence, once the author
was unable to obtain a stay of the deportation and was indeed
deported, all domestic remedies had been exhausted because the
deportation order was executed. To perfect applications challenging
a decision to execute a decision of removal under these circumstances
would, according to counsel, be meaningless.
respect to the merits, it is the counsel's opinion that no person
has adequately and properly assessed the risk run by the author.
To allow any assessment of risk to be made within the context
of a determination as to whether a person is a danger to the public
to permit his deportation is, according to counsel, unsatisfactory.
The risk assessment has to be conducted independently of any evaluation
of danger. Counsel submits that the Committee should know whether
or not the State party concluded that the author was at risk.
This is particularly important in light of the position of the
State party that deportation to countries where a person risks
torture is possible under certain circumstances.
counsel is of the opinion that the assessment of risk made by
the State party after the removal of the author is not satisfactory.
The assessment should have taken place prior to the removal.
for the current situation of the author, counsel acknowledges
that she has been unable to communicate with him. Counsel argues,
however, that the State party has not made any effort to verify
the author's current situation and determine whether he is safe
and at risk of being subjected to torture.
comments by State party
a submission of 10 May 2000, the State party argued with regard
to the admissibility of the case that a positive determination
on the application on humanitarian and compassionate grounds could
have enabled the author to remain in Canada. Furthermore, the
State party reiterates its arguments that the removal of the author
did not render his rights or pending actions ineffective or moot.
regard to the merits of the case, the State party submits that,
in its consideration as to whether the author constituted a danger
to the public in Canada, the Minister did assess the risk faced
by the author in case of return to Afghanistan. Such assessment
was also done by the Federal Court Trial Division in its 12 November
State party finally reiterates its concern that the Committee
should not become a fourth instance by re-evaluating findings
of domestic courts unless there was a manifest error or if the
decision was tainted by abuse of power, bad faith, manifest bias
or serious irregularities.
comments by counsel on behalf of the author
a submission of 7 June 2000, counsel underlined that the application
on humanitarian and compassionate grounds is not an effective
remedy because it does not stay the removal; in any event it was
useless to pursue an application challenging a decision of removal
after the deportation had been executed.
also repeated that the "danger opinion" is not a risk assessment
and that the decision of the Federal Court was based on misconstructions
of evidence, and the judge had no expertise in assessing risk.
and proceedings before the Committee
considering any claims contained in a communication, the Committee
must decide whether or not it is admissible under article 22 of
the Convention. The Committee has ascertained, as it is required
to do under article 22, paragraph 5 (a), of the Convention, that
the same matter has not been and is not being examined under another
procedure of international investigation or settlement.
regard to the exhaustion of domestic remedies, the Committee has
taken note of the observations by the State party and by the author's
counsel. Pursuant to article 22, paragraph 5 (b), of the Convention,
the Committee is precluded from considering any communication
unless it has been ascertained that all available domestic remedies
have been exhausted. This rule does not, however, apply if it
is established that the application of domestic remedies has been
or would be unreasonably prolonged or would be unlikely to bring
effective relief to the presumed victim. In this connection, the
Committee notes that the author was removed to Afghanistan on
27 November 1998. The Committee therefore declares the communication
Committee notes that both the State party and the author's counsel
have provided observations on the merits of the communication.
It therefore decides to consider the merits at the present stage.
Committee is of the opinion that the author did not bring any
evidence that he would be personally at risk of being subjected
to torture if he were returned to Afghanistan. The Committee also
noted that the author has not suggested that he had been subjected
to torture in the past. Nor has he alleged that he has been involved
in any political or religious activities such that his return
could draw the attention of the Taliban to the extent of putting
him at personal risk of torture.
author only brought information on the general situation in Afghanistan
and claimed that, as a member of the Tajik ethnic group, he would
face torture upon return to Afghanistan. Although it recognizes
the difficulties encountered by some ethnic groups in Afghanistan,
the Committee considers that the mere claim of being a member
of the Tajik ethnic group does not sufficiently substantiate the
risk that the author would be subjected to torture upon return.
a consequence, the Committee against Torture, acting under article
22, paragraph 7, of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, is of the view that
the facts as presented by the author and as found by the Committee
do not reveal a breach of article 3 of the Convention.
v. Canada, communication No. 15/1994, (CAT/C/13/D/15/1994);
Mutombo v. Switzerland, communication No. 13/1993 (CAT/C/12/D/13/1993).
Vilvarajah and Others v. United Kingdom, 14 E.H.R.R. 218
(30 October 1991).
Bahaddar v. The Netherlands, No. 145/1996/764/965 (19 February
v. Sweden, communication No. 64/1997 (19 November 1997).
communication No. 34/1995, CAT/C/18/D/34/1995, 9 May 1997.
v. Canada (Minister of Citizenship and Immigration) 
3 F.C. 315 (T.D.); Farhadi v. Canada (Minister of Citizenship
and Immigration)  4 F.C. 325 (T.D.).