ICCPR Case Digest

CCPR/C/125/D/2948/2017

Communication

2948/2017

Submission: 2017.01.26

View Adopted: 2019.03.14

H. S. et al. v. Canada

Claim that the denial of asylum in Canada raises a violation of the Covenant, inadmissible as domestic remedies not exhausted

Substantive Issues
  • Liberty and security of person
  • Non-discrimination
  • Privacy
  • Right to family
  • Right to liberty
  • Right to life
  • Rights of the child
  • Torture / ill-treatment
Relevant Articles
  • Article 10
  • Article 17
  • Article 2 - OP1
  • Article 23
  • Article 24
  • Article 26
  • Article 3 - OP1
  • Article 5.2 (b) - OP1
  • Article 6.1
  • Article 7
  • Article 9.1

Facts

The authors are both Indian nationals, acting on their own behalf and on behalf of their children who are Canadian citizens. The authors were refused asylum and were ordered to leave Canada, however they claimed that Canada would violate their rights under articles 2, 6, 7, 9, 10, 17, 23, 24 and 26 of the Covenant if they were forced to return to India. 

  • The authors submitted that H.S. resided and worked in Mayalsia in the 1990s, and was interrogated and tortured by Police in 2000 as the result of his alleged role acting as a mediator for Indian and Pakistani activitsts. He alleged he was forced to pay a bribe in order to be released.
  • In 2006, H.S. returned to India to marry A.K., and during his stay took steps to recover a debt from a man R.S., who's father later passed away. Suspicion arose regarding this death and R.S.'s family retaliated by reporting H.S. as a people smuggler with a false passport to Indian authorities.
  • H.S. was arrested in October 2006 and questioned about his political affiliations again. Later, it was alleged that Mr. H.S.'s brother was arrested and tortured because of his links to Mr H.S., and was missing since 2010.
  • The authors arrived in Toronto, Canada in November 2008 and applied for asylum which was rejected.

Complaint

  • The authors claimed that they would be likely arrested on arrival because of the allegedly unsubstantiated charges relating to their political affiliations. H.S. noted that he fears he would face extrajudicial execution and therefore a violation of numerous rights under the Covenant, including Article 6 (right to life), 7 (freedom from torture, cruel or inhuman or degrading treatment or punishment).

Admissibility

  • The Committee noted that the authors must exhaust all domestic remedies in order to fulfil the requirements of Article 5(2) of the Optional Protocol. In this case the authors, having been rejected by the Immigation and Refugee Board of Canada, were entitled to apply to the Federal Court of Canada for judicial review of the determination and did not do so (albiet on the advice of counsel).
  • For this reason, the Committee determined that the authors had not exhausted all domestic remedies and found the communication precluded by Article 5(2)(b) of the Optional Protocol and therefore inadmissible.

Separate Opinions

Joint opinion (dissenting) of José Manuel Santos Pais and Gentian Zyberi

  • José Manuel Santos Pais and Gentian Zyberi issued a joint dissenting opinion arguing that the Committee majority did not give sufficient consideration to the best interests of the children. They noted that while the authors elected not to apply to the Federal Court of Canada for judicial review, this decisioning was not sufficient for children to "be victims of their parents' choices".
  • The minority submitted that given the procedure is still pending and there has not been a definitive resolution of the matter of the the authors' permanent residence, a family reunification procedure remains a possibility and Canada should stay the removal order while the application to the Committee remains under consideration.

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