Communication No. 604/1994**
Submitted by: Joseph
by Mr. Stewart Istvanffy]
Victim: The author
State party: Canada
Date of communication:
15 June 1994 (initial submission)
The Human Rights Committee,
established under article 28 of the International Covenant on Civil
and Political Rights,
Meeting on 18
Adopts the following:
Decision on admissibility
1. The author of the communication
is Mr. Joseph Nartey, 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 lawyer.
The facts as presented
by the author
2.1 The author, who was
born on 20 February 1959, claims that he was a student activist since
1978, and that, in 1989, he became vice-president of the Takoradi
Students' Union. He was a supporter of the Armed Forces Revolutionary
Council (AFRC), which took power after a coup on 4 June 1979, and
which is the predecessor of the Provisional National Defence Council
(PNDC), the government in power at the time of the author's entrance
into Canada. On 15 July 1989, the author was informed by the Minister
of Education that he was selected to go and study in Bulgaria for
six months. On 17 August 1989, the author left Ghana by plane, together
with the other students selected for the program. During the flight,
they were informed that their destination was Libya, and not Bulgaria,
and that they would undergo a six-month military intelligence training.
2.2 Upon arrival in Libya,
the students' passports were confiscated and they were sent to a military
training camp. They were told not to try to communicate with anyone
from Ghana. After six months of training, the students were informed
that they would continue their training for another 18 months. The
disappointed author wrote a letter to the Takoradi Student Union in
Ghana accusing the Minister of Education of being a liar, condemning
the government for wasting scarce resources and warning other students
not to participate in study programs abroad. The author mailed the
letter in February 1990. On that very day, he was arrested, shown
the letter, kicked, and forced to sign a statement of which he did
not know the contents. He was told that the Chairman of the PNDC would
be informed. He then was imprisoned at the Tajuara prison in Libya.
2.3 On 1 September 1991,
a friend helped the author escape. It was arranged for him to leave
Libya through the help of a third person, who, on 15 September 1991,
put him on a plane with destination Canada.
2.4 The author arrived
in Canada on 16 September 1991 and claimed recognition as a refugee
immediately upon arrival. He claimed to fear for his life because
of what he had witnessed in Libya, because of the opinions that he
has expressed and because he had broken PNDC law. A hearing into his
claim was held on 10 March 1992 before two commissioners of the Refugee
Division of the Canadian Immigration and Refugee Board, in Montreal,
Quebec. On 29 September 1992, the Refugee Division dismissed the author's
claim for recognition as political refugee. The Refugee Division considered
inter alia that there was no evidence that the Ghanaian Government
sends forced recruits to Libya. Leave to appeal was granted by the
Federal Court, but the appeal was dismissed by judgment of 20 January
1994. Due to a change in 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
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. 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 organization 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
3.3 The author further
argues that the decision by the Refugee Division cannot be justified
on the basis of the available evidence and that the language of the
decision clearly shows administrative bias against refugee claimants
from Ghana. In particular, it is stated that sufficient evidence was
placed before the Division as to the Ghanaian practice to send forced
recruits to Libya. 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 The author further
argues that the above mentioned events and facts also amount to a
violation by Canada of articles 2, paragraph 1, and 26 of the Covenant,
since he was treated in a discriminatory fashion because of his ethnic
origin and political opinions.
3.5 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 him 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.
3.6 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 of article 2, paragraph 3, of the Covenant.
3.7 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
State party's observations
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
4.2 The State party recalls
that the author arrived in Canada on 16 September 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 30 October 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 10 March and 3
April 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 29 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 26 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 appeal 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 20 January 1994,
the Judge dismissed the application for judicial review. The Judge
found that the panel's finding was on the whole supported by the evidence.
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 interventions made by him did not demonstrate
an unfavorable attitude towards the author. The judge also considered
that the allegations against him were very general and based on affidavit
evidence indicating problems between the Ewe tribe (to which he belonged)
and the Ashanti and Akan tribes, whereas the author belonged to the
Ga tribe. Moreover, the judge considered that neither the author nor
his counsel had raised the issue of a reasonable apprehension of bias
during the hearing, although they claimed before the Court that this
bias was well known in the Ghanaian community.
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. On 24 April 1995, the author's counsel
filed an application for leave for judicial review in the Federal
Court of Canada, Trial Division. He subsequently failed to perfect
the application by filing an application record with supporting affidavits.
On 26 May 1995, counsel filed a demand to cease being counsel for
the author, because of failure to cooperate on the author's part.
On 29 August 1995, the Court dismissed the author's application for
leave because of the failure to file an affidavit in time.
4.9 The State party explains
that since the author failed to leave Canada voluntarily, a deportation
order was issued against him and a warrant has been issued for his
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, which he could have done without leave.
Second, the author failed to seek a humanitarian and compassionate
review under section 114(2) of the Immigration Act. Third, the author
failed to complete his application for judicial review 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.
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 complete his 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
was ordered deported only following the rejection of his claim after
a full hearing with possibility of judicial review.
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 Refugee 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 refers to the consideration 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
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 been received.
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
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 he failed to
perfect his application for judicial review against the negative post-claim
determination decision. The communication is therefore inadmissible
for non-exhaustion of domestic remedies.
7. The Human Rights Committee
* 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 General Assembly.]