Submitted by: Kwame Williams Adu [represented by
Mr. Stewart Istvanffy]
Victim: The author
State party: Canada
Date of communication: 28 December 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 Kwame Williams Adu,
a Ghanian national, at the time of submission residing in Canada where
he requested recognition as a refugee. He claims to be the victim of
violations by Canada of articles 2, paragraphs 1 and 3; 6, paragraph
1; 7; 9; 13; 14, paragraph 1; and 26, of the International Covenant
on Civil and Political Rights. He is represented by Mr. Stewart Istvanffy,
a Montreal lawyer.
The facts as presented by the author
2.1 The author was born on 16 November 1968. He claims
that he was a leading member of the Esaase Youth Association in the
Ashanti Region, as well as a soccer player with a popular local club;
he was well known and a natural leader in his area. His father is a
sub-chief of the local chieftaincy structure. In March 1992, representatives
of the military Government of Ghana went to Esaase, to solicit support
for the candidacy of Jerry Rawlings to the presidency. The author and
the President of the Youth Association manifested their opposition to
Mr. Rawlings' candidacy, initiating a door to door campaign against
the government. That night, the author was arrested and detained for
over five months in bad conditions. A former coach of the Kumani soccer
team, availing himself of bribery, was able to secure the author's escape
in September 1992.
2.2 The author arrived in Canada on 17 September 1992.
He requested refugee status, on the grounds that he had a well founded
fear of persecution based on his political opinion and membership in
a particular social group. His claim was heard on 10 May 1993, before
two commissioners of the Refugee Division of the Canadian Immigration
and Refugee Board, in Montreal, Quebec. The Refugee Division dismissed
the author's request for recognition as a political refugee. His application
for leave to appeal was denied on 28 June 1994.
The complaint
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 states that one of the commissioners at the hearing,
a Mr. Sordzi, was biased against him; the author therefore claims that
the hearing did not meet the requirements for a competent independent
and impartial tribunal. In support of his claim that Mr. Sordzi was
biased, the author explains that there is a serious ethnic conflict
in Ghana, and that the military regime is dominated by the Ewe tribe,
to which both Mr. Sordzi and Mr. Rawlings, the President of Ghana, belong,
whereas the author belongs to a different ethnic group. Counsel contends
that, contrary to the opinion of the Federal Court of Canada, tribal
affiliations in Ghana run deep and are not extinguished by physical
displacement. The author states that for these reasons Ghanian refugees
are afraid to testify before a person of Ewe origin, often contradicting
themselves; this is then used to discredit the veracity of their testimony.
Mr. Sordzi is said to have opined that all so called refugees from Ghana
were economic migrants. In this respect, counsel claims that Mr. Sordzi
is a supporter of the Government in Ghana and that the fact that he
sits as judge of his compatriots on Refugee claims, violates the right
to a fair hearing. Counsel adds affidavits from prominent members of
the Ghanaian community in Montreal in order to prove that Mr. Sordzi
has a long history of antipathy towards refugee claimants from Ghana.
3.2 The author argues that the language used in the decisions
by the Refugee Division clearly shows administrative bias against refugee
claimants from Ghana. In this context, reference is made to an alleged
preconceived political line with respect of Ghana which does not recognize
the factual situation in that country; counsel adds that the panel went
to great lengths to find his client's story not credible even though
it would appear to be in line with what is known to be the current situation
in Ghana.
3.3 Counsel 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, as he was treated in a discriminatory fashion,
because of his ethnic origin and political opinions.
3.4 The author further argues that the death penalty is
frequently imposed in Ghana on people convicted for political crimes,
and that the State party, by returning him to Ghana would place him
in a very dangerous situation, which could lead to a violation of his
right to life, in contravention of article 6 of the Covenant. Counsel
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
is said to have exceeded his jurisdiction by making decisions on the
credibility of refugee claimants from Ghana.
3.5 Counsel contends that the Federal Court, by dismissing
the author's appeal has misapplied Canadian law and thereby eliminated
the only effective recourse available to the author, in violation of
article 2, paragraph 3, of the Covenant.
3.6 Counsel further submits that Canadian legislation
provides for a Post-Determination Review and for a Humanitarian and
Compassionate review, but alleges that these remedies are devoid of
substance and illusory. He claims therefore that for purpose of article
5, paragraph 2, of the Covenant domestic remedies have been exhausted.
State party's observations
4.1 By submission of 23 July 1996, 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 reported to
immigration authorities in Montreal claiming refugee status on 17 September
1992. He stated that he had arrived in a truck from New York, after
having left Ghana for Burkina Faso by car and then by plane to New York
with stopovers somewhere in Africa and in Switzerland. On 5 November
1992, the author was found to have a prima facie claim under
the Refugee Convention, and a conditional departure notice was issued
with obligation to leave Canada within one month of any negative decision
of the Immigration and Refugee Board concerning his claim.
4.3 On 10 May 1993, 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 (who had been representing
him since the initial interview with immigration officers on 13 October
1992), evidence on country conditions was presented, the author gave
oral testimony and a number of exhibits were filed. The State party
emphasizes that neither the author nor his counsel raised any objection
to the constitution of the panel.
4.4 On 15 October 1993, the panel decided that the author
was not a Convention refugee. It found the author not credible because
of the inconsistencies in his story and because of the implausibility
of certain events described by the author. In particular, the panel
noted that at the time that the author claimed to have been arrested
for opposing the soliciting of votes for the National Democratic Congress'
presidential candidate Rawlings, the party did not as yet exist and
Rawlings' candidacy was not announced until three months after the events
alleged by the author. The author then applied for leave to appeal to
the Federal Court Trial Division In the immigration context,
the Court's stated test for granting leave is that an applicant show
"a fairly arguable case" or "a serious question to be determined"..
The author based his appeal on errors of law and fact, including allegations
of reasonable apprehension of bias of on the part of panel member Sordzi.
On 28 June 1994, his application was denied with no reasons given. No
further appeal is available.
4.5 On 17 January 1994, the author, represented by a new
counsel, filed a motion for reopening with the Refugee Division in order
to have new evidence considered. On 22 March 1994, his request was dismissed
since the Division lacked competence to reopen a claim to hear new evidence,
and could only reopen a case if the Division had violated a principle
of natural justice or committed an error of fact.
4.6 Under the post-determination refugee claimants in
Canada class (PDRCC) review process, 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. The author's (new) counsel made representations,
including evidence not earlier presented. On 23 January 1995, the author
was informed that the post-claim determination officer had concluded
that he did not belong to that class of individuals. The author has
not sought judicial review of this decision.
4.7 On 12 April 1995, the author failed to show up at
a hearing to prepare his voluntary departure from Canada. The State
party submits that it is not aware of his present whereabouts.
4.8 The State party argues that the author's communication
is inadmissible for failure to exhaust domestic remedies. First, the
author failed to seek a humanitarian and compassionate review under
section 114(2) of the Immigration Act The State party explains
that this is a broad discretionary review by an immigration officer
to determine whether a person's admission to Canada should be facilitated
for humanitarian and compassionate reasons. A wide range of circumstances
may be taken into account, including risk of unduly harsh treatment,
conditions in the country concerned and any new developments.. The State
party contests the author's claim that this remedy and the post-determination
review are devoid of substance. It notes that counsel for the author
has based himself on statistics showing a 99% rejection rate, but argues
that these figures relate to the situation before the introduction of
the PDRCC at a time that such a review was conducted as routine without
applications made on behalf of the applicants. The State party maintains
that the review is effective in particular cases.
4.9 The author also failed to apply for leave for judicial
review of the negative PDRCC decision to the Federal Court Trial Division.
The State party explains that on review, the author would have been
entitled to raise arguments under the Canadian Charter of Rights and
Freedoms similar to the arguments made in his communication to the Committee.
Decisions of the Trial Division would have been appealable (with leave)
to the Federal court of Appeal and from there with leave to the Supreme
Court.
4.10 Finally, the State party explains that the author
could challenge the constitutionality of any provision of the Immigration
Act by way of declaratory action or bring an action in the Federal Court
Trial Division for breach of his Charter rights.
4.11 The State party concludes that the domestic remedies
above were available to the author and that he had a duty to avail himself
of these remedies prior to petitioning an international body. Any doubts
that the author may have about the effectiveness of the remedies would
not absolve him from exhausting them.
4.12 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 after a full hearing with possibility of judicial
review. In this context, the State party refers to the Committee's Views
in Ng v. Canada Communication No. 469/1991, Views
adopted 5 November 1993., where the Committee found that the extradition
of the petitioner to a country where he faced the possibility of the
death penalty did not constitute a violation of article 6(1) since the
decision to extradite had not been taken summarily or arbitrarily. The
State party adds that the author still has available remedies to exhaust.
4.13 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. 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..
4.14 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 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
(VRMB v. Canada) Declared inadmissible on 18 July
1988..
4.15 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 the author's allegations
of bias specifically relate to Mr. Sordzi and not to the presiding member
who wrote the decision. In this context, the State party recalls that
the author's claim would have succeeded even if the presiding member
alone would have come to the conclusion that he was a Convention refugee.
The State party submits that the author's allegations of bias are unfounded,
as shown by the rejection of his application for judicial review by
the Federal Court Trial Division, which apparently did not consider
that he had established a "fairly arguable case" of bias. In this context,
the State party refers to Federal Court's reasoned decisions dealing
with the same allegation of bias against Mr. Sordzi In particular,
the State party quotes from the Federal Court's decision in Badu
v. Minister of Employment and Immigration, 15 February 1995, where
the judge stated:
"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." The Court concluded that
the affidavits submitted in evidence were highly subjective and
provided no objective corroboration or support.. The State party
also refers to the transcript of the hearing, which shows no improper
interventions by Mr. Sordzi, and to the text of the decision where
the reasons for not finding the author credible are well set out.
The State party submits that the fact that Mr. Sordzi was of Ghanaian
origin and belonged to the Ewe tribe does not in itself create a
reasonable apprehension of bias. In this context, the State party
explains that the Immigration and Refugee Board relies on members
who have a personal knowledge or experience of the countries from
which refugee claimants come or who speak the language of the claimants.
According to the Canadian courts, this is a desirable feature of
the refugee determination process.
4.16 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.
4.17 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.
4.18 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 30 August 1996. 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 Covenant.
6.2 The State party has argued that the communication
is inadmissible for non-exhaustion of domestic remedies, while the author's
counsel has contended that the post-determination review and the humanitarian
and compassionate review are devoid of substance. The Committee recalls
its jurisprudence that mere doubts about the effectiveness of domestic
remedies do not relieve an author of the duty to exhaust them. In the
instant case the author failed to avail himself of the avenue of judicial
review against the negative post-claim determination decision. It follows
that as far as it relates to the author's claim that his return to Ghana
would be in violation of the Covenant, the communication is inadmissible
for non-exhaustion of domestic remedies.
6.3 As regards the author's claim that he did not have
a fair hearing, once the Federal Trial Court Division rejected the author's
application for leave to appeal which was based, inter alia,
on allegations of bias, no further domestic remedies were available.
The author claims that the hearing was not fair, as one of the two Commissioners
who participated was of Ghanaian origin and a member of the Ewe tribe
whose hostile attitude towards Ghanaian refugees was said to be well
known among members of the Ghanaian community in Montreal. However,
neither the author nor his counsel raised objections to the participation
of the Commissioner in the hearing until after the author's application
for refugee status had been dismissed despite the fact that the grounds
for bias were known to the author and/or his counsel at the beginning
of the hearing. The Committee is therefore of the opinion that the author
has failed to substantiate, for purposes of admissibility, his claim
that his right to a fair hearing by an impartial tribunal was violated.
In the circumstances, the Committee need not decide whether or not the
decision in the author's refugee claim was a determination "of his rights
and obligations in a suit at law", within the meaning of article 14,
paragraph 1, of the Covenant.
7. The Human Rights Committee therefore decides:
(a) that the communication is inadmissible under articles 2 and
5, paragraph 2(b), of the Optional Protocol;
(b) that this decision shall be communicated to the State party
and to the author's counsel.
______________
* 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.]
