Submitted by: Andres Badu [represented by Mr. Stewart
Victim: The author
State party: Canada
Date of communication: 11 June 1994 (initial submission)
The Human Rights Committee, established under
article 28 of the International Covenant on Civil and Political Rights,
Meeting on 18 July 1997,
Adopts the following:
Decision on admissibility
1. The author of the communication is Mr. Andres Badu,
a Ghanaian citizen, at the time of submission residing in Canada, where
he requested recognition as refugee. He claims to be a victim of a violation
by Canada of articles 2(1) and (3), 6(1), 7, 9, 13, 14(1) and 26 of
the Covenant. He is represented by Mr. Stewart Istvanffy, a Montreal
The facts as presented by the author
2.1 The author, who was born on 29 November 1960, claims
that he was an active member of the Ghana Democratic Movement (GDM),
a group opposed to the Provisional National Defence Council (PNDC),
which formed the government in Ghana. On 14 June 1991, the author's
home was allegedly searched by three security agents, who found letters
pertaining to GDM activities; the author was then arrested, beaten and
imprisoned and charged with possession of seditious documents. On 20
June 1991, the author was admitted to hospital to recover from his ill-treatment.
With the help of his family, he escaped from hospital and went into
hiding. On 30 June 1991, the author learned that he had been declared
a wanted person. He subsequently left the country under disguise.
2.2 The author arrived in Canada on 8 July 1991. He requested
recognition as a refugee, on the grounds that he had a well-founded
fear of persecution based on his political opinion and membership of
a particular social group. A hearing into his claim was held on 17 February
1992 before two commissioners of the Refugee Division of the Canadian
Immigration and Refugee Board, in Montreal, Quebec. On 16 September
1992, the Refugee Division dismissed the author's claim for recognition
as political refugee. Leave to appeal was granted by the Federal Court,
but the appeal was dismissed by judgment of 6 January 1994. Due
to a change in the law, the author's appeal was in fact treated as an
application for judicial review by the Federal Court Trial Division
and denied. See further paragraphs 4.4 and 4.5.
3.1 The author claims that he has not received a fair
hearing of his refugee claim, in violation of article 14, paragraph
1, of the Covenant. He argues that the two commissioners at the hearing
were biased against him. He claims that one of the commissioners, a
Ms. Wolfe, based herself on false and misleading information which she
was given outside the meeting room and to which the author had no chance
to respond. The author further submits that the other commissioner,
a Mr. Sordzi, is himself from Ghana, has the same ethnic origin as Mr.
Rawlings, the leader of the regime in Ghana, has publicly expressed
his support for the regime in Ghana, and has acted against political
refugees from Ghana in the past.
3.2 In support of his claim that Mr. Sordzi was biased,
the author explains that there is a very serious ethnic conflict in
Ghana, and that the military regime is dominated by the Ewe tribe, to
which Mr. Sordzi belongs, whereas the author himself is an Ashanti.
The author states that for these reasons Ghanaian refugees are afraid
to testify before a person from Ewe origin and therefore not able to
tell their full story. In this context, it is submitted that Mr. Sordzi
was one of the leading members of the Concerned Ghanaians' Association,
until this organisation fell apart in 1988 over the issue whether or
not to help Ghanaian refugees. Mr. Sordzi is said to have vehemently
opposed help to Ghanaian refugees and to have opined that all so called
refugees from Ghana were economic migrants. In support of his allegations,
the author provides sworn statements made by Ghanaians now living in
3.3 The author further argues that the language of the
decision by the Refugee Division clearly shows administrative bias against
refugee claimants from Ghana. In this context, reference is made to
an alleged understanding among Western nations to deny the severity
of the human rights violations taking place in Ghana. In support of
his claim, the author refers to a report of the Country Assessment Approach
Working Group Ghana, which was the outcome of inter-governmental consultations
held in Canada in 1992. Moreover, it is stated that Mr. Sordzi represented
the Montreal office at a meeting of Immigration and Refugee Board's
regional directors about the situation in Ghana, on 25 March 1992. The
author argues that it was totally inappropriate for Mr. Sordzi to attend
this meeting, in view of his personal bias. The report from that meeting
is said to contain seriously wrong assessments. Commissioners allegedly
have on several occasions made statements about the human rights situation
in Ghana which are blatantly untrue, and regarding issues which moreover
had been differently assessed by the Federal Court of Appeal.
3.4 As to the author's hearing before the two commissioners,
it is alleged that he was interrogated in a very aggressive fashion
and that he was frequently interrupted. He was allegedly questioned
about articles in a magazine which he had never read, and which related
to events of which he had no knowledge. This is said to show that the
commissioners acted in bad faith.
3.5 The author further argues that the above mentioned
events and facts also amount to a violation by Canada of articles 2,
paragraphs 1, and 26 of the Covenant, since he was treated in a discriminatory
fashion because of his ethnic origin and political opinions.
3.6 The author further argues that many political opponents
in Ghana are being sentenced to death, and that the State party, by
returning him to Ghana, would place the author in a very dangerous situation
which may lead to a violation of his right to life, in violation of
article 6 of the Covenant. The author also contends that the deportation
of an individual who has not had his claim to refugee status heard by
an impartial tribunal, but by a biased one, amounts to cruel, inhuman
and degrading treatment within the meaning of article 7 as well as to
a violation of article 9, paragraph 1, of the Covenant. It is moreover
argued that the author's expulsion would not be in pursuance of a decision
reached in accordance with the law, as required by article 13 of the
Covenant, because commissioner Sordzi has exceeded his jurisdiction
by making decisions on the credibility of refugee claimants from Ghana.
3.7 The author claims that the Federal Court, by dismissing
his appeal, has misapplied the Canadian law and thereby eliminated the
only effective recourse available to the author, in violation with article
2, paragraph 3, of the Covenant.
3.8 The author states that Canadian legislation provides
for a Post-Determination Review and for a Humanitarian and Compassionate
Review, but claims that these remedies are devoid of substance and illusory.
He claims therefore that he fulfils the requirement of article 5, paragraph
2 (b), of the Optional Protocol.
State party's submission
4.1 By submission of 16 October 1995, the State party
argues that the communication is inadmissible and provides information
with regard to its refugee determination process.
4.2 The State party recalls that the author arrived in
Canada on 8 July 1991 and indicated his intention to seek refugee status.
He was not in possession of a valid visa, nor did he possess a valid
passport, identity or travel document. On 22 August 1991, the author
was found to have a prima facie claim under the Refugee Convention,
and a conditional exclusion order was issued.
4.3 On 17 February 1992, two Commissioners of the Refugee
Division of the Immigration and Refugee Board heard the author in order
to determine whether he met the definition of Convention refugee under
the Immigration Act. The State party explains that a claim succeeds
if either member of the panel is satisfied that the claimant meets the
definition. At the hearing, the author was represented by counsel, evidence
on country conditions was presented, the author gave oral testimony
and a number of exhibits were filed.
4.4 On 16 September 1992, the panel decided that there
was no serious possibility that the author would be persecuted if returned
to his country of nationality. The author then applied for leave to
appeal to the Federal Court of Appeal. Leave was granted on 21 January
1993. On 1 March 1993, the law was changed, and the author's appeal
accordingly was treated as an application for judicial review by a judge
of the Federal Court Trial Division. The author based his application
on errors of law and fact, including allegations of institutional bias
and personal bias of the panel members who had heard his claim.
4.5 On 6 January 1994, the Judge dismissed the application
for judicial review. The Judge found that the Board's finding on the
author's credibility was within the Board's field of discretion or judgement-making.
He further found that there was no evidence of partiality on the part
of the members of the panel. In particular, with regard to Mr. Sordzi,
the judge found that the affidavit evidence against Mr. Sordzi provided
no objective corroboration or support for the allegations of bias. The
judge added: "It is an aberration to suggest that Mr. Sordzi, who
arrived in Canada in 1968 and became a Canadian citizen in 1976, cannot,
by reason of ancestral warfare and conflict, carry out properly, objectively
and judicially the duties and responsibilities which Parliament has
imposed upon him."
4.6 The State party points out that the author could have
appealed the judge's decision to the Federal Court of Appeal, but failed
to do so.
4.7 The State party notes that other review processes
were available to the author after his asylum request had been denied.
He could have sought a humanitarian and compassionate review of his
case under section 114(2) of the Immigration Act Under section
114(2) of the Immigration Act a refugee claimant may request a humanitarian
and compassionate review, to see whether extraordinary circumstances
warrant landing. The review includes a risk assessment and the test
is one of disproportionate hardship. Judicial review of a negative decision
may be sought before the Federal Court Trial Division, with leave.,
which he failed to do.
4.8 Under the post-determination refugee claimants in
Canada class (PDRCC) review process, established in February 1993, individuals
determined not to be Convention refugees can apply for residency in
Canada if upon return to their country they would face a risk to their
life, of extreme sanctions or of inhumane treatment. On 5 April 1995,
the author was informed that the post-claim determination officer had
concluded that the author did not belong to that class of individuals.
4.9 The State party submits that the author voluntarily
left Canada for Ghana on 8 June 1995.
4.10 The State party argues that the author's communication
is inadmissible for failure to exhaust domestic remedies. First, because
he failed to appeal the Federal Court Trial Division's decision of January
1994, in which the court dismissed his application for review based
on bias of the commissioners, to the Federal Court of Appeal. Second,
the author failed to seek a humanitarian and compassionate review under
section 114(2) of the Immigration Act. Third, the author failed to file
an application for judicial review in the Federal Court of Canada, Trial
Division, of the negative PDRCC decision; the State party explains that
on an application for judicial review the author could have made arguments
under the Canadian Charter of Rights and Freedoms similar to the arguments
made in his communication to the Committee. The author could also have
challenged the constitutionality of any provision of the Immigration
Act by way of declaratory action.
4.11 The State party further claims that the communication
is inadmissible for failure to substantiate violations of Covenant rights.
As regards the author's claims under article 6, the State party argues
that the author's exclusion from Canada does not constitute a prima
facie violation of his right to life, as his claims were rejected by
the competent authorities and he did not make use of the possibility
of judicial review against these negative decisions.
4.12 As regards the author's claims under articles 9 and
13, the State party argues that these articles do not grant a broad
right to asylum or right to remain in the territory of a State party.
The author was allowed to stay in Canada for the purpose of having his
refugee claim determined and left voluntarily following the rejection
of his claim after a full hearing with possibility of judicial review.
In this context, the State party refers to the Committee's Views in
Maroufidou v. Sweden Communication No. 58/1979, Views
adopted on 9 April 1981..
4.13 As regards the author's claim under article 14, paragraph
1, of the Covenant, the State party argues that refugee proceedings
are in the nature of public law and as such are not encompassed by the
phrase "suit at law" in article 14 of the Covenant. In this context,
the State party refers to its submissions in respect of communication
No. 236/1987 (V.R.M.B. v. Canada) Declared inadmissible
on 18 July 1988..
4.14 Moreover, the State party argues that, even if Immigration
and Refugee Board proceedings are held to constitute a "suit at law",
sufficient guarantees of independence Members are appointed
by the Governor in Council for terms of up to seven years and drawn
from all segments of Canadian society. They may only be removed on limited
grounds by an inquiry procedure presided over by a judge, supernumerary
judge or former judge of the Federal Court of Canada. The Immigration
and Refugee Board operates autonomously and has its own budget. Decisions
of the Refuge Division can be overturned in a court of law. exist so
that it can reasonably be said to be an independent tribunal within
the meaning of article 14, paragraph 1. The State party further submits
that the two member panel which decided the author's claim was impartial.
In this respect, the State party notes that neither the author nor his
counsel raised the issue of a reasonable apprehension of bias during
the Refugee Division hearing itself. The State party also refers to
the rejection by the Federal Court Trial Division of the author's allegations
of bias. As regards the author's allegations of institutional bias,
the State party submits that the author's case was decided on the basis
of the evidence produced in the proceedings, and this evidence did not
include the reports referred to by the author. The State party further
argues that sufficient legal guarantees exist to exclude any legitimate
doubt of the tribunal's institutional impartiality.
4.15 As to the author's claim under article 7, that his
deportation amounts to cruel, inhuman or degrading treatment, because
his claim had not been heard by an impartial tribunal, the State party
refers to its argument above and argues that the tribunal was impartial
and that the author's claim is thus inadmissible.
4.16 As regards the author's claims that he was denied
equality before the law because one of the members of the panel was
of Ewe ancestry, the State party submits that the allegations of denial
of equality rights are without any factual or legal basis and should
thus be declared inadmissible.
4.17 The State party finally argues that the Human Rights
Committee is not a "fourth instance" competent to reevaluate findings
of fact or to review the application of domestic legislation, unless
there is clear evidence that the proceedings before the domestic courts
were arbitrary or amounted to a denial of justice. In the absence of
such evidence, the State party argues that the author's claims are inadmissible.
Issues and proceedings before the Committee
5. The deadline for counsel's comments on the State party's
observations was 27 November 1995. By letter of 29 May 1997, counsel
was informed that the Committee would examine the admissibility of the
communication at its sixtieth session, in July 1997. No submission has
6.1 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.
6.2 The Committee notes that the State party has argued
that the communication is inadmissible for non-exhaustion of domestic
remedies. It has also noted the contention of counsel that the post-determination
review and the humanitarian and compassionate review are devoid of substance.
In this context, the Committee recalls its jurisprudence that mere doubts
about the effectiveness of domestic remedies do not absolve an author
of the requirement to exhaust them. Further, the Committee notes that
it was open to the author to appeal the decision of the Federal Court
Trial Division to the Federal Court of Appeal and that judicial review
was available to the author against the negative post-claim determination
decision, but that he failed to avail himself of these avenues. The
communication is therefore inadmissible for non-exhaustion of domestic
7. The Human Rights Committee therefore decides:
(a) that the communication is inadmissible under article 5, paragraph
2(b), of the Optional Protocol;
* The following members of the Committee participated
in the examination of the present communication: Mr. Nisuke Ando, Mr.
Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal, Ms. Christine Chanet,
Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Eckart
Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar,
Mr. Martin Scheinin and Mr. Danilo Türk.
** Mr. Maxwell Yalden did not participate in the adoption
of the decision, pursuant to rule 85 of the Committee's rules of procedure.
[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