Deportation of a Tamil asylum-seeker to Sri Lanka despite allegations of past torture and risk of persecution found inadmissible due to non-exhaustion of remedies

Facts

The author, M.D., a Sri Lankan Tamil, claims he would face torture or death if deported to Sri Lanka due to his perceived links with the Liberation Tigers of Tamil Eelam (LTTE). Born in Jaffna in 1987, he and his family were arrested and mistreated multiple times between 2002 and 2009. He was detained, beaten, and tortured on several occasions by the Sri Lankan police and pro-government militias, often released only after bribes were paid. In July 2009, he was abducted by the Tamil Karuna faction, accused of helping the LTTE, and escaped after six days of detention, fleeing Sri Lanka. Upon arrival in Canada in April 2012, M.D. applied for refugee status, but the Immigration and Refugee Board rejected his claim in September 2015, finding that while his account was consistent, his arrests were part of general sweeps of Tamils rather than targeted persecution. His subsequent judicial review request was dismissed in 2016, and his pre-removal risk assessment was denied in 2018 on the grounds that he faced no personal risk. In April 2019, following a series of bombings in Sri Lanka, the author’s father and brother were arrested under the Prevention of Terrorism Act, reinforcing his fear of persecution upon return. He also participated in Tamil Genocide Remembrance Day in Canada in May 2019, further heightening his concerns. On 24 May 2019, he submitted his communication to the Committee, and on 28 May 2019, the Committee requested interim measures to prevent his deportation.

M.D. alleges violations of articles 6 (1) and 7 of the Covenant, arguing that his return to Sri Lanka would expose him to torture and extrajudicial killing and that Canadian authorities failed to properly assess new evidence of risk.

Admissibility

The Committee declared the communication inadmissible under article 5 (2) (b) of the Optional Protocol for failure to exhaust domestic remedies. It noted that the author did not apply for a second pre-removal risk assessment (PRRA), despite his claim of new evidence, nor did he seek an administrative deferral of removal or apply for permanent residence on humanitarian and compassionate grounds. The Committee observed that such remedies could have been effective in preventing his removal, and doubts about their effectiveness did not absolve the author from exhausting them. The Committee also found that M.D. failed to submit his new evidence including letters from a Sri Lankan lawyer and a member of Parliament confirming his family’s arrests, to Canadian asylum authorities before bringing the case to the Committee, preventing Canada from addressing the claims domestically. Given the availability of unexhausted domestic remedies, the Committee declared the communication inadmissible and did not assess the merits of the case.