Moses Solo Tarlue v. Canada

ANNEX

Decisions of the Human Rights Committee

under the Optional Protocol to the International

Covenant on Civil and Political Rights


- Ninety-fifth - concerning Communication No. 1551/2007**
Submitted by: Mr. Moses Solo Tarlue (not represented by counsel)

Alleged victim: The author

State party: Canada

Date of communication: 12 March 2007 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 27 March 2009,

Adopts the following:
DECISION ON ADMISSIBILITY

1.1 The author of the communication is Moses Solo Tarlue, a Liberian citizen born on 12 August 1968. He claims to be a victim by Canada of violations of article 2; article 7; article 9 para. 2; article 9 para. 3; article 9 para. 5; article 12 para. 2; article 14 para. 3(d) and article 14 para. 3(e) of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for the State party on 19 May 1976. The author is unrepresented.

1.2 On 3 April 2007, the Secretariat informed the author that the Committee, through its Special Rapporteur on New Communications, had decided not to issue a request for interim measures under rule 92 of the Committee's rules of procedure. The author was deported to Monrovia, Liberia, on 24 April 2007. CCPR/C/95/D/1551/2007 Page 4
1.3 On 15 August 2007, the Special Rapporteur for New Communications, on behalf of the Committee, determined that the admissibility of this case should be considered separately from the merits.

Facts as presented by the author

2.1 The author, a member of the Krahn tribe, worked for the Liberian National Police between 1988 and 1990 and was then selected to be a member of the elite presidential security force. He became a businessman after the fall of President Doe's regime and he arrived in Canada on 25 October 2004 and requested refugee status on the same day. His claim was referred to the Refugee Protection Division (RPD). On 14 November 2005, the RPD held its hearing to assess the author's claim for refugee protection. During the hearing, the author was told by an immigration official that members of the late President Doe's Krahn tribe who served in his government were not permitted to live in Canada, as they were responsible for starting the civil war in Liberia.

2.2 On 7 December 2005, the RPD found that the author had been involved in war crimes and crimes against humanity and accordingly, excluded him, pursuant to Article 1(F) of the 1951 Convention relating to the status of Refugees, from the refugee definition and from being a person in need of protection. The RPD decision stated inter alia that the author had been associated with the Liberian police force for most of President's Doe's term, that he had risen quickly in the ranks to be head of a department with 180 people reporting to him, and that he had been responsible for emergency operations and investigations in Monrovia. It also found that the author had been mandated to act as a security guard in the Executive Mansion and was chosen for this position not only because he, like Mr. Doe, was Krahn, but also because he was a confidant for the former President. The decision further added that there might not have been any hard evidence to show that the author was the one to pull the trigger, but there was compelling evidence to show that all the security forces under President Doe were guilty of crimes against humanity.

2.3 The author did not seek judicial review to the Federal Court of Canada of the RPD's decision because his lawyer, who had been recommended by Legal Aid, informed him afterwards that filing appeals was not among his duties.
2.4 Since December 2005, following the RPD's decision, the author repeatedly requested the Immigration Office in Toronto to have his passport returned to him so as to enable him to leave Canada and attempt to resettle with his family in the United States. The immigration authorities requested a visa guarantee from the US authorities before they would return the author's passport. The US government also required a letter from the Canadian immigration authorities indicating the date at which the author was to leave Canada before they could proceed with issuing a visa guarantee.

2.5 On 10 November 2006, the author went to the Toronto immigration office to obtain such a letter. On his arrival, he was told that he was under arrest on suspicion of having committed war crimes and crimes against humanity. As no warrant was presented to him, he refused to cooperate with the arresting officers. One of the officers left and came back an hour later with a warrant, explaining that there had been a misunderstanding as the author's file was in Montreal. The author was then taken to Metro West Detention Centre in Toronto. The order for his CCPR/C/95/D/1551/2007 Page 5
detention indicated as the reasons for his arrest, involvement in war crimes, crimes against humanity and threatening an officer with death, all of which the author denies. The author was placed in a cell for the mentally ill for one week, where he allegedly was hit repeatedly in the face by another inmate. He was then transferred to a normal cell upon recommendation of a psychiatrist. Later, he was placed in isolation for nine days at the request of immigration officials, who objected to his calling them to inquire about his case.

2.6 The author received three letters signed by one Senator Mobutu Vlah Nyenpan of the Liberian Senate Committee on Human Rights and Petition, stating that there was no record of him being involved in war crimes during the civil war in Liberia and also stating that the author's life would be in danger if he was deported to Liberia due to the war crime allegations made against him by Canada. Mr. Nyenpan also specified on the third letter that the author's detention for allegedly committing war crimes and crimes against humanity created "animosity within Liberian society" (sic).

2.7 On 15 November 2006, the author was notified that he would be removed from Canada. On 30 November 2006, he submitted a Pre-Removal Risk Assessment Application and relevant submissions (PRRA). On 16 January 2007, his PPRA application was rejected, as he was not determined to be at personal risk in Liberia. The author did not apply to the Federal Court for leave to apply for judicial review of this decision because he received a copy of the decision on 31 January 2007, on the last day of the deadline to file an appeal, and also because the text of the PRRA decision did not mention that an appeal should be filed within 15 days.

2.8 On 24 March 2007, the author was transferred to a maximum security prison in Lindsay, Ontario, awaiting his deportation to Monrovia, Liberia.

2.9 On 25 April 2007, the author was deported to Liberia and immediately detained upon his arrival due to the fact that his deportation was based on war crimes charges. On 29 April 2007, after Liberian authorities had determined that he had not committed any war crimes, the author was released "on signature".

The Complaint

3.1 On article 2, paragraph 1, the author claims that the statement made by some Immigration Department officials according to which members of President Doe's Krahn tribe should not have been permitted to live in Canada are discriminatory and racist. He points out that other members of President Doe's regime have been given refugee status in Canada and provides examples.

3.2 In his initial complaint and prior to his removal to Liberia, the author had argued that his forced return to Liberia would constitute a violation of article 7 of the Covenant. He had claimed that during the civil war, he was specifically targeted and his wife and parents were executed solely because the former was his wife and the latter because of their links with the author and their membership in the same tribe. He had left the country to seek a safe haven for his family. He had claimed that there were widespread allegations that he was a war criminal and was detained in Canada, news which was broadcast on Liberian radio and that his life or personal integrity would be in danger if he were to be forcibly returned to Liberia. He had claimed that the danger would emanate both from the public at large and from the warring factions that fought against the tribe of the former President.

3.3 The author claims a violation of article 7 because he was placed in a cell for the mentally ill where he was assaulted by another inmate and, later, put in an isolation cell for nine days. The author adds that he has been in detention for almost five months after having being denied bail because he was considered to be dangerous to the public, although he had lived for two years in Canada without incident other than his refusal to be arrested without a warrant.

3.4 The author claims a violation of article 9, paragraphs 2 and 3, as Canadian officials tried to arrest him for war crimes and crimes against humanity without a warrant and detained him without a conviction for war crimes or crimes against humanity. He further claims that as a victim of unlawful arrest and detention, he should be compensated under article 9, paragraph 5.

3.5 The author argues that after having been denied refugee status, Canadian officials refused to return his passport and to allow him to the leave the country, in breach of article 12, paragraph 2.

3.6 The author submits that article 14, paragraph 3 (d) was violated because legal aid in Canada does not cover appeal proceedings in asylum cases. As a result, the author could not lodge an appeal against the RPD's decision excluding him from the Convention refugee definition and from the status of a person in need of protection. The author was also denied legal aid during the hearings reviewing the legality of his detention and held in detention for nearly five months without being granted bail in breach of article 14, paragraph 3 (d).

3.7 The author further claims a violation of article 14, paragraph 3 (e) for having been falsely accused of war crimes and crimes against humanity by Canada while he was never accused of such crimes by either Liberia or any other international tribunal. He submits that he never indicated in his Personal Information Form to the Immigration and Refugee Board that he was a member of the Presidential Security and that he had 189 men in his department in charge of investigation at the Liberian National Police force, as indicated in the RPD's decision.

3.8 The author makes further general claims on the emotional and financial consequences his detention had on his children.

State party's observations on admissibility

4.1 On 6 July 2007, the State party challenged the admissibility of the communication. It clarifies that in October 2004, the author left Liberia and travelled to China, then England, and finally arrived in Toronto, Canada, on 25 October 2004. Despite holding a valid Liberian passport, the author travelled to Canada using a false one. Accordingly, on 25 October 2004, a Departure Order was signed by the immigration officer, as there were grounds to believe that the author was inadmissible for failing to comply with the Immigration and Refugee Protection Act (IRPA) requirement to have a valid visa on entry. The Departure Order was automatically stayed until such time as the author's claim for refugee protection was determined. The same day, the author's claim was forwarded to the Refugee Protection Division ("RPD") of the Immigration and Refugee Board (IRB) and his Liberian passport was seized pursuant to subsection 140(1) of IRPA. In the interim, the author filed an application for a student visa, which was denied on 13 December 2004. The RPD reached a decision on the author's claim for refugee protection on 7 December 2005 and gave notice of its decision to the author and his counsel on 13 December 2005. On 12 April 2006, the author requested return of his Liberian passport in order to travel to Japan on business. The request was denied by immigration authorities, who needed the passport in order to execute the author's removal. Following the author's exclusion from the refugee protection process under IRPA, the Departure Order against the author became enforceable and he was summoned to a pre-removal interview scheduled for 19 May 2006 which he did not attend. A warrant for his arrest was issued on 24 August 2006 on the ground that he was unlikely to appear for subsequent pre-removal interviews. On 10 November 2006, the author voluntarily came to the Immigration Office in Mississauga (near Toronto), apparently to reclaim his passport or to obtain other travel documents that would allow him to go to the United States. At this time, the immigration enforcement division proceeded to execute the warrant for his arrest, as the order for his removal from Canada was in force. As the author was extremely uncooperative and threatening, an order for his detention was issued, based on the enforcement officer's opinion that the author was unlikely to appear for his subsequent removal appointments given his prior failure to comply with immigration laws as well as the author's violent disposition. On 14 November 2006, the author received his first detention review hearing and had then six subsequent detention review hearings on 21 November and 19 December 2006, 16 January, 13 February, 13 March and 13 April 2007. The author was represented by counsel during most of these hearings.

4.2 The State party challenges the admissibility on the grounds that some of the rights asserted are not protected by the Covenant and the claims are incompatible ratione materiae. In the alternative, the State party submits that the totality of the author's communication is inadmissible on the grounds of non-substantiation of the allegations and therefore manifestly ill-founded. In a further alternative, the communication is inadmissible deemed on the grounds that the author failed to exhaust all available domestic remedies. The State party also argues that the author cannot request the Committee to act as a "fourth instance" to re-assess the findings made by competent and impartial domestic decision-makers instances.

4.3 With regard to the alleged violations of article 14, paragraph 3 (d) and (e), and although the author did not raise them during the hearings themselves, the State party submits that the detention review hearings are "immigration proceedings" and, in light of the fact that article 14 offers guarantees in the context of the criminal proceedings, the author claims rights that do not extend to immigration proceedings [1]. The State party therefore submits that this part of the author's communication is inadmissible ratione materiae. In the alternative, the State party submits that the author clearly did not substantiate any alleged violation of article 14, paragraph 3 (d) and (e), including his complaint of being denied legal representation.

4.4 The State party argues that the author failed to substantiate all his claims and that his communication should be declared inadmissible on this ground. In relation to his claim under article 7, it points out that the allegations of risk were examined by the PRRA officer who concluded that the material did not provide any probative evidence that the author would be subjected to a risk of torture, to his life or cruel and unusual treatment or punishment if returned to Liberia. Furthermore, no evidence was offered that the current Liberian government is indeed interested in individuals who were associated with the former President or his regime. Contrary to the author's assertions, the State party submits that the letters presented by the author at his PRRA indicate that the current Liberian government is not concerned about the author's association with the former President.

4.5 On the author's claims under article 7, the State party notes that firstly, the RPD decision found that there were reasonable grounds to believe the author to be complicit in the commission of war crimes and crimes against humanity. The State party submits that any confirmation by Liberian officials that there is "no record of the author having committed war crimes or crimes against humanity" relates to a different matter. In fact, for the purposes of an application for refugee protection, which is the context in which the RPD made its finding of complicity, it is irrelevant that the author was not charged with or put on trial for war crimes or crimes against humanity, either in Canada or Liberia. Secondly, the author was arrested and detained by Canadian immigration authorities not because of his alleged involvement in war crimes or crimes against humanity but rather because of his failure to report to a pre-removal interview and his subsequent violent behavior toward immigration officials. Thirdly, the author was removed from Canada and returned to Liberia because the domestic processes, which have not been demonstrated to have been flawed, concluded that he was not at risk of torture if returned to Liberia.

4.6 The State party submits that the author has not substantiated his general allegations with respect to discrimination (article 2), arbitrary arrest and detention (article 9), right to leave Canada (article 12), maltreatment or torture during detention (article 7), inappropriate legal assistance (article 14), denial of bail (article 14), his children's misery (no article invoked) or right to compensation for unlawful arrest and detention on even a prima facie basis. The author has produced little more than bare assertions of various allegations, making it impossible to defend against or evaluate the merits of any of the allegations made. He had ample opportunity to provide the particulars of his allegations during his six detention reviews. The State party argues that without particulars and dates of alleged events, it cannot be reasonably expected to reply to allegations ranging from the author being hit in the face by another inmate, to the author's placement in segregation for a few days and whether it amounted to an infliction of severe pain and suffering or treatment meeting the threshold for being considered under article 7. It refers to the Committee's case law in which it indicated that it does not entertain abstract or unsupported claims of violations [2]. The State party concludes that the allegations contained in the author's communication are devoid of substantiation on even a prima facie basis and should be declared inadmissible.

4.7 Finally, the State party argues that the author failed to pursue various judicial and administrative remedies available to him. Although the RPD decision clearly mentioned that judicial review was possible, with leave, before the Federal Court, the author did not apply for it. Instead, his counsel, seemingly newly hired by the author, filed an application for leave to review the Departure Order issued on 25 October 2004, which was dismissed due to his failure to file an Application Record. The author could have also sought permission to have his PRRA decision reviewed by the Federal Court but did not do so, arguing that he was not afforded sufficient time when his legal representative could have easily obtained an extension to file his application. Moreover, the author could have submitted a humanitarian and compassionate application (H&C application), the Committee having recognized H&C applications as being an effective domestic remedy [3]. Similarly, the author could have sought judicial review of his detention review hearings decision but he did not do so. The State party invokes the Committee's jurisprudence according to which authors are bound by procedural rules such as filing deadlines applicable to the exhaustion of domestic remedies, provided that the restrictions are reasonable [4]. The State party submits that the reason advanced by the author for missing the deadline to apply for judicial review in respect of his PRRA is implausible, in light of the fact that he was then represented by legal counsel, and simply demonstrates a lack of diligence [5]. The author has not shown how a 15-day deadline for the application was unfair or unreasonable. Regarding his treatment in detention, the author could have brought his various claims, including any alleged mistreatment during one or more of his detention review hearings, followed by judicial review if he so wished. The same is true for some of his other allegations, including his allegation of discrimination in regard of his exclusion from refugee protection and his allegation of a right to compensation for unlawful arrest and detention. Theses claims could have been raised either in the context of judicial review proceedings or by initiating legal actions based on domestic provisions that are equivalent to his claims under the Covenant, i.e. sections 9 and 15 (1) of the Canadian Charter of Rights and Freedoms.

Author's comments on the State party's submissions on admissibility

5. On 23 June 2008, the author reiterates all his previous allegations and adds new ones. He claims that he was removed from Canada on 25 April 2007 by two immigration officers via Germany and Belgium, who presented copies of the author's passport Belgian and German authorities designating him as a "war criminal". He explains that upon his arrival in Monrovia, he was put in prison for two days and was then released. He asserts that he should be allowed back into Canada to conduct business activities through a company he owns there and which is registered in Ontario. He adds that during his four-year stay in Canada prior to deportation, he always complied with Canadian laws. He adds that because of the danger created by false allegations of war crimes he allegedly committed which were broadcasted on Liberian radio, his children as well as and those of his late brother had to flee the country for safety reasons.

Additional comments by the State party

6.1 On 25 September 2008, the State party argues, with regard to the alleged violation of article 12, paragraph 1, that States have no obligation to allow aliens onto their territory6. Nor does the Covenant contain any right of an alien to conduct business on the territory of another state. Therefore, the State party submits that the author has not substantiated, on even a prima facie basis, his claim under article 12 and that this portion of his complaint is inadmissible.

6.2 With regard to the alleged violation of article 7, the State party reiterates that the author failed to substantiate any violation. It stresses that the author at no time referred to physical maltreatment or torture he would have suffered at the hands of the Liberian authorities. It also reiterates that, prior to the author's deportation to Liberia, it had been determined that the author did not face a real risk of torture or of cruel, inhuman or degrading treatment or punishment if deported to Liberia.

Issues and proceedings before the Committee

7.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with article 93 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

7.2 The Committee notes that the State party challenges the admissibility of the entire communication.

7.3 With regard to the author's claims under article 2 of the Covenant, the Committee recalls that the provisions of this article, which lay down general obligations for State parties, cannot by themselves and standing alone give rise to a claim in a communication under the Optional Protocol. The Committee considers that the author's claim to this effect cannot be sustained, and that accordingly it is inadmissible under article 2 of the Optional Protocol7.

7.4 With regard to the author's claim under article 7, the Committee recalls that States parties are under an obligation not to expose individuals to a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment upon entering another country by way of their extradition, expulsion or refoulement8. It notes that the RPD considered and rejected the author's asylum application, invoking the exclusion clause of article 1F (a) of the 1951 Refugee Convention. It further notes that the author's application for Pre-Removal Risk Assessment (PPRA) was denied on 16 January 2007. The Committee recalls its jurisprudence that it is generally for the courts of States parties to the Covenant to evaluate facts and evidence in a particular case, unless it is apparent that the evaluation was clearly arbitrary or amounted to a denial of justice [9]. It notes that this jurisprudence has also been applied to removal proceedings [10]. The material before the Committee is insufficient to show that the proceedings before the authorities in the State party suffered from any such defects. The Committee accordingly considers that the author has failed to substantiate his claims under article 7, for purposes of admissibility, and concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.

7.5 As to the alleged violation of article 7 relating to the author's conditions of detention, the Committee has noted the State party's argument that the author did not advance any such claim during any of his detention review hearings. The Committee recalls its jurisprudence, according to which the requirement of exhaustion of domestic remedies, which allows the State party to remedy an alleged violation before the same issue is raised before the Committee, oblige authors to raise the substance of the issues submitted to the Committee before domestic courts. Noting that the author has failed to raise the alleged violation of article 7 on the conditions of his detention, before domestic courts, the Committee declares this part of the communication inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

7.6 With respect to the author's claims under article 9, the Committee notes that the author did not challenge the State's party assertion that he had six detention reviews, none of which he appealed. The Committee further notes that the author has not demonstrated how his detention prior to deportation should have been deemed to be unlawful or arbitrary. The Committee accordingly finds that the claims under article 9 have been insufficiently substantiated, for purposes of admissibility, and is thus inadmissible under article 2 of the Optional Protocol.

7.7 With respect to the author's claims under article 12, the Committee notes that pursuant to article 12, paragraph 3, an individual may be restricted from leaving a country in certain limited situations. The Committee notes that the author has failed to respond to the State party's argument that his passport was seized pursuant to subsection 140 (1) of the Immigration and Refugee Protection Act (IRPA), for the purposes of executing the author's removal under the same Act. Taking account of the particular circumstances of the present case, the Committee concludes that the author has failed to substantiate for the purposes of admissibility any claim under article 12 of the Covenant and this claim is inadmissible under article 2, of the Optional Protocol.

7.8 With regard to the author's claims under article 14, paragraph 3 (d) and (e), the Committee notes that the author was not charged with, or found guilty of, any offence in the Sate party, and that the decision to deport him did not constitute a sanction imposed as a result of criminal proceedings. The Committee recalls that deportation proceedings following a negative asylum determination decision against the author do not constitute the "determination of a criminal charge" within the meaning of article 14 of the Covenant, and concludes that the complaint relating to article 14, paragraph 3 (d) and (e), is thus inadmissible ratione materiae, under article 3 of the Optional Protocol.

8. The Committee therefore decides:

a) That the communication is inadmissible under articles 2, 3 and 5, paragraph 2 (b), of the Optional Protocol;

b) That this decision shall be communicated to the author and to the State party.

[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.]

^** The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Ahmad Amin Fathalla, Mr. Yuji Iwasawa, Ms. Helen Keller, Mr. Lazhari Bouzid, Ms. Zonke Zanele Majodina, Ms. Iulia Antoanella Motoc, Mr. Michael O'Flaherty, Mr. José Luis Pérez Sanchez-Cerro, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Fabian Omar Salvioli, Mr. Krister Thelin and Ms. Ruth Wedgwood.


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Notes:

¹ See Communication No. 1341/2005, Zundel v. Canada, inadmissibility decision of 20 March 2007, at paras. 6.7 and 6.8; Communication No. 1234/2003, P.K. v. Canada, inadmissibility decision of 20 March 2007, at para. 7.4

² See Annual Report of the Human Rights Committee, A/56/40 (Volume 1) at para. 113; See Annual Report of the Human Rights Committee, A/61/40 (Volume 1) at para. 119; Communication No. 1056/2002, Khachatrian v. Armenia.

³ See Communication No. 1302/2004, Khan v. Canada, inadmissibility decision of 25 July 2006, at para. 5.5.

⁴ See Communication No. 982/2001, Bhullar v. Canada, inadmissibility decision of 31 October 2006, at para. 7.3.

⁵ See Committee against Torture, Communication No. 284/2006, inadmissibility decision of 21 November 2006, where the Committee did not accept that mistakes by author's counsel could excuse the non-observance of the exhaustion rule.
⁶ See General Comment No. 15: the position of aliens under the Covenant, 11 April 1986, at para. 5

⁷ See idem, at para. 7.6

⁸ See Communication No.1302/2004, Khan v. Canada, inadmissibility decision of 25 July 2006, para. 5.4. and Communication No. 1234/2003, P.K. v. Canada, inadmissibility decision of 20 March 2007, para. 7.2.

⁹ See for example Communication No. 541/1993, Errol Simms v. Jamaica, inadmissibility decision adopted on 3 April 1995, para. 6.2.

¹⁰ See Communication No. 1234/2003, P.K. v. Canada, inadmissibility decision adopted on 20 March 2007.