Removal to Guinea
Risk of torture, right to security of person, right to submit the reasons against expulsion, right to a hearing by a competent, independent and impartial tribunal, right to have or adopt a belief of one’s choice, right of the child to such measures of protection as are required by his or her status as a minor
Failure to exhaust domestic remedies; failure to substantiate allegations
Articles of the Covenant:
7; 9, paragraph 1; 13; 14; 18, paragraph 1; 24, paragraph 1
Articles of the Optional Protocol:
2; 5, paragraph 2 (b)
The Working Group of the Human Rights Committee recommends that the Committee consider for adoption the annexed draft as the Committee’s Views, under article 5, paragraph 4, of the Optional Protocol in respect of communication No. 1465/2006. The text of the Views is appended to the present document.
Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (ninety-eighth session)
** The following members of the Working Group of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Yuji Iwasawa, Mr. Michael O’Flaherty, Mr. Rafael Rivas Posada, Mr. Fabian Omar Salvioli, Mr. Krister Thelin and Ms. Ruth Wedgwood.
Communication No. 1465/2006 **
Ms. Diene Kaba
(represented by counsel, Ms. Johanne Doyon and Ms. Valérie Jolicoeur)
Ms. Diene Kaba and Fatoumata Kaba, her minor daughter
Date of communication:
7 April 2006 (initial submission)
Decision on admissibility:
1 April 2008
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on ... March 2010,
Having concluded its consideration of communication No. 1465/2006 submitted by Ms. Diene Kaba under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author of the communication and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
[Explanatory footnotes in square brackets will be removed from the text of the final decision.]
1.1The author of the communication is Ms. Diene Kaba, born on 27 March 1976 in Monrovia, Liberia, a national of Guinea, who has submitted the communication on her behalf and on that of her daughter, Fatoumata Kaba, born on 2 December 1994 in Guinea. She states that her removal to Guinea with her daughter would violate their rights under articles 7; 9, paragraph 1; 13; 14; 18, paragraph 1; and 24, paragraph 1, of the Covenant. They are represented by counsel, Ms. Johanne Doyon and Ms. Valérie Jolicoeur. The Optional Protocol entered into force for the State party on 19 May 1976.
1.2On 27 July 2007, the Committee, pursuant to rule 92 of its rules of procedure, acting through its Special Rapporteur on New Communications and Interim Measures, requested the State party not to remove the author and her daughter to Guinea while the communication was under consideration by the Committee.
The facts as submitted by the author
2.1On 20 February 2001, when Fatoumata was 6 years old, Mr. Karou Kaba, the author’s husband, sent for two exciseuses (excision practitioners) without her knowledge to abduct Fatoumata after school in order to excise her. When the author came to pick up her daughter, she was informed that two old ladies had come to take Fatoumata away, and she hurried home. She was able to prevent the excision just as her husband returned and, when he saw her, he beat her. Fatoumata sustained a scalp wound in the commotion. Mother and daughter managed to escape, and left Guinea on 25 May 2001. They went to Canada and claimed refugee status on grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of Fatoumata’s excision.
2.2On 17 September 2002, the Immigration and Refugee Board of Canada (IRB) refused to grant refugee status to the author and her daughter on grounds of lack of credibility. On or around 3 March 2003, the author applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations (H&C), and on or around 22 November 2005, she applied for a pre-removal risk assessment (PRRA). The evidence submitted in support of these applications includes several documents confirming the risk of excision in Guinea, a medical certificate attesting to the fact that Fatoumata had not been excised and abundant evidence of the practice of excision in Guinea. A letter from the author’s uncle, Mr. Kabine, confirmed that her husband was still angry and threatened to harm her if he saw her again. The author’s uncle also confirmed that Mr. Kaba had beaten her in the past. The author also submitted a letter from her husband in which he threatened her and insisted that Fatoumata should become a “true Muslim”, i.e., undergo excision. The author’s husband accused her of behaving like a white person and threatened to kill her if she did not return his daughter to him.
2.3Alongside her problems with her husband, the author has expressed fear of persecution in relation to subsequent events experienced by her family in Guinea. These include the arrest of several members of the Kaba family following a failed coup against the President in January 2005. Since then, the family has been under heightened surveillance and subjected to unannounced raids on their homes, and five family members have been arrested. Another uncle was abducted one night in April 2005 and is currently detained; the conditions in which he is being held are unknown. According to testimony, when a family member was being questioned in April 2005, the authorities accused the author and one of her brothers, who is also currently outside the country, of financing a coup to overthrow the President of Guinea. All of this is new evidence that was not considered during the application for refugee status in 2002.
2.4The PRRA and H&C applications were rejected on 16 December 2005 and the date of removal was set. The author filed an application for leave and judicial review of the PRRA and H&C decisions with the Federal Court. She also filed an appeal for a stay of removal with the Federal Court, which was denied on 27February 2006.
2.5On 19 May 2006, counsel stated that the author had obtained a divorce on 12January 2006 following proceedings instituted in July 2005. She was represented at the hearing by her brother, Al Hassane Kaba, who had been authorized to consent to the divorce and ask for sole custody of Fatoumata. The divorce decree contains no reference to custody of the child; according to counsel, section 359 of the Civil Code of Guinea applies in this instance: custody of a child aged over 7 years is automatically granted to the father. The author’s brother states that Mr. Kaba has obtained a court ruling ordering him and his mother to do everything possible to bring Fatoumata back to her father, on pain of severe penalties. In his affidavit, the author’s brother further warns that Mr. Kaba is still determined to have Fatoumata undergo excision and has announced his intention to give her in marriage to his nephew. On her return to Guinea, Fatoumata would thus face certain excision and a forced marriage by her father, who would have complete parental authority over her. No protection would thus be provided by the State of Guinea to the authors. The author has also submitted testimony from her uncle, Mr.Bangaly Kaba, dated 13 March 2006, reiterating the serious threats faced by the author and her daughter.
3.1The author asserts that articles 7; 9, paragraph 1; 13; 14; 18, paragraph 1; and 24, paragraph 1, of the Covenant have been violated by Canada. However, she does not link each of these articles with specific allegations.
3.2Several substantial errors are claimed to have been committed in the decisions rendered, concerning in particular (a) the risk of excision and failure to assess the best interests of the child; (b) disregard of the evidence and failure to assess the author’s fear in regard to her particular situation as a single woman and a victim of spousal abuse; (c) violation of the principles of natural justice, the right to a hearing, adverse finding of credibility and arbitrary rejection of new evidence; and (d) failure to consider a new aspect of the fear of return, i.e., fear as a member of the Kaba family.
3.3Firstly, concerning the failure to assess Fatoumata’s best interests, the main problem is said to have occurred during the PRRA and H&C procedures. The file contained medical evidence showing that Fatoumata had not undergone excision and letters and sworn statements by the author confirming the risks of excision in Guinea. The documentary evidence provided showed that around 99 per cent of girls in Guinea are affected by excision. Although Guinea has enacted legislation addressing the issue, it is not applied in practice and hence protection by the State is non-existent. The PRRA officer admitted that the existence of excision in Guinea is not at issue in the present case. The Federal Court decision refers neither to the issue of excision nor to that of the best interests of the child – yet the stay of removal was based on these considerations. This error points to violation of the articles of the Covenant and places Fatoumata’s physical integrity, mental health, security, development and education at risk. Fatoumata’s removal also runs counter to the Convention on the Rights of the Child. It is in Fatoumata’s best interests not to return to an unhealthy environment in which her polygamous father would continue to assault and attack her mother as in the past. In this case, however, the PRRA officer and the Federal Court failed to display the necessary attentiveness and sensitivity to the child’s interests in remaining in Canada, where she is integrated and safe from excision. Counsel also refers to several decisions by Canadian bodies in which applications for refugee status were accepted solely on the basis of the risk of excision in Guinea, which is equivalent to persecution, and in which women were recognized as a particular social group.
3.4Secondly, the PRRA and H&C decisions neglected to consider the author’s particularly vulnerable situation as a female victim of spousal abuse and a single woman. It is the combined effect of being a female victim of spousal abuse, the absence of protection by the State of Guinea and the lack of family support in Guinea because of her refusal to allow her daughter to be excised that has led to her well-founded fear of persecution. The author refused to bow to tradition and took a stand against her husband and in-laws concerning Fatoumata’s excision. The IRB decision did not challenge the fact that she was a victim of spousal abuse. In fact, the court had questioned the validity of a medical certificate referring to Fatoumata, but did not explicitly challenge the medical certificates or photographs of the author confirming her injuries and medical examinations carried out after her beating by her husband.
3.5Moreover, neither the PRRA officer nor the Federal Court considered the application from the standpoint of women as a particular social group. It is alleged that both the PRRA officer and the IRB member who denied the refugee status application erred at law when they concluded that the author needed to prove that she and her daughter were personally targeted, disregarding the well-founded nature of their fear in view of the risks faced by members of a particular social group, i.e., women.
3.6Thirdly, concerning violation of the principles of natural justice, the H&C and PRRA decisions cannot be held valid given that these principles have been infringed. During the PRRA and H&C procedures, the officer cast doubt on the author’s credibility and rejected the new evidence, questioning her behaviour in delaying, as he saw it, her departure from Guinea with her daughter. Yet the new documents were crucial in that they corroborated several of the allegations: the author’s husband’s demand that her daughter undergo excision and confirmation that the author faced serious and even fatal reprisals if he saw her again; and her uncle’s confirmation that her husband had threatened and beaten her and was determined to have his daughter excised. The author was given no opportunity to be heard, and the officer did not attribute any evidentiary value to key evidence, to the detriment of the right to a hearing. Furthermore, the officer questioned the credibility of the author’s entire account without interviewing her so as to clear up alleged contradictions or inconsistencies. Moreover, the Federal Court decision makes no mention of the new evidence. The authors therefore allege that the PRRA and H&C decisions are fundamentally flawed insofar as no interview or hearing was conducted to resolve issues of fact and credibility.
3.7Fourthly, concerning the arbitrary rejection of new evidence and failure to consider a new aspect of the fear of return, another crucial error was committed in the PRRA and H&C decisions. The letter from the author’s sister provided new evidence of risk, i.e., fear of persecution as a member of the Kaba family and as a person accused by the authorities of having financed a coup against the President. This evidence was not available at the time of the IRB hearing, and the PRRA officer rejected it. Counsel reiterates that it is not fair that the officer should reject that evidence of risk without even giving the author an opportunity to argue her case in an interview.
3.8Enforcement of the order to remove the author and her daughter to Guinea would cause them irreparable harm, adversely affecting the security, health, physical integrity and life of the author, who faces reprisals by her husband, without any possibility of protection by the State in Guinea. Enforcement of the removal order would endanger Fatoumata’s security, health, development, physical and mental integrity, life and best interests.
State party’s submission
4.1On 24 January 2007, the State party submitted that the communication is inadmissible on grounds of both failure to exhaust domestic remedies and lack of sufficient substantiation of the author’s allegations.
4.2The State party submits that the communication is inadmissible for failure to exhaust domestic remedies. The “new” evidence should have been submitted under a new PRRA application by the author, a remedy which is still available to her. The author could also apply to the Federal Court for a stay of the enforcement of the removal order pending the result of the PRRA.
4.3Concerning the minimum justification for the communication, the author’s allegations are manifestly not credible, given the numerous contradictions and implausibilities surrounding key aspects of her testimony. The evidence submitted fails to corroborate her allegations and is not credible. The complaint reveals no substantial grounds for believing that the author and her daughter risk being subjected to any treatment prohibited by article 7 of the Covenant on their return to Guinea. The allegations of violation of the other articles of the Covenant are inadmissible ratione materiae or are not sufficiently substantiated for the purposes of admissibility.
4.4Alternatively, and for the same reasons, the communication should be rejected on its merits, according to the State party. The author’s allegations have already been carefully examined by the Canadian authorities under the refugee determination procedure, the PRRA and H&C applications and the application for the stay of a removal order before the Federal Court. The allegations and evidence submitted under these procedures are essentially the same as those currently before the Committee. Having examined those allegations and the evidence and having heard the author’s oral submissions, the Canadian authorities concluded that she lacked credibility and that she and her daughter did not risk persecution or unlawful treatment on their return to Guinea. In particular, the Canadian authorities concluded that there was no credible evidence giving reason to conclude that Fatoumata faced a personal risk of forced excision in Guinea.
4.5The State party refers to the main inconsistencies and contradictions noted by the Canadian authorities. Firstly, it notes the absence of credible evidence of the alleged attempt at forced excision on 20 February 2001. The IRB observed that the medical certificate dated 20 February 2001 completely contradicts the author’s account, as it states that Fatoumata received her injuries three weeks before the alleged attempt at forced excision. When she was confronted with this major contradiction during the IRB hearing, the author did not offer any reply or explanation. Nor did she attempt to explain this contradiction in her PRRA application in November 2005. She now claims before the Committee that the physician had been mistaken in stating that Fatoumata had suffered her injuries three weeks before the medical examination. She submits as evidence a further medical certificate dated 25 January 2006 and signed by the same Gabonese doctor. It reads in part as follows: “In fact it was an injury sustained on the same day, i.e., 20February 2001, the date of the medical examination, and not three weeks earlier. The mistake in the date was due to confusion with another young girl I had seen in my practice some time before, with the same cranial injury”. The State party submits that this new evidence is not credible and that the doctor’s explanation is implausible. Firstly, it is not merely a matter of the wrong date, as the diagnosis of 20 February 2001 reports a condition in remission and does not describe clearly a patient who has just been injured. Secondly, it is unlikely that the author of the medical certificate would remember his mistake and the reason for it nearly five years later. The correction fails to explain why the author’s prescription is dated 11 February 2001, whereas she claims she received her injuries at the same time as her daughter, i.e., on 20 February 2001.
4.6The State party further points out that the author went to France without her daughter on 22 February 2001. She was in possession of a passport and a Schengen visa valid until 10 March 2001. Instead of escaping immediately with her daughter, the author made a one-week trip to France without her from 22 February to 1 March 2001, the date of her return to Gabon. It was not until three months later that she left Gabon with her daughter. In her refugee status application the author stated that the purpose of her trip to France was to obtain a visa for Canada. In fact, however, her Canadian visa was obtained in Libreville, Gabon, and there is no indication of any application for a Canadian visa in Paris in February 2001. When the IRB questioned her on the subject, the author argued that the trip to France was an opportunity to seek refuge there, without claiming to have availed herself of this option. She also testified that she did not want to leave France to return to Gabon, but that her daughter was still in Gabon. Notwithstanding the conclusions of the IRB, the author did not attempt to explain her trip to France in her PRRA application, or in her H&C application, or in her communication to the Committee. As for the delay between her return from France and the date on which she left Gabon with her daughter, 25 May 2001, the author said this was due to lack of money and her husband’s temporary absence. Yet the trip to France suggests that her financial resources did not play a major role in that delay. Furthermore, by her own admission, the author was not a pagne (cotton wrap) vendor as stated in her refugee status application, but a receptionist at the Embassy of Guinea in Libreville, Gabon, during the period in question. When she applied for a visa to Canada in 2001, the author included a letter from the Embassy and her diplomatic identity card, which confirmed her employment there.
4.7The Canadian authorities examined all the evidence and found that it did not corroborate her allegations. As to the medical certificate confirming that Fatoumata had not undergone excision, the PRRA officer did not consider it sufficient to prove the existence of the alleged risks. The PRRA officer also examined the three letters from the author’s sister, uncle and husband and observed that the first letter made no mention of the risks of excision or of the alleged harassment of the author by her husband. The PRRA officer noted that the author had made no mention of political persecution or of her family’s political activities in Guinea in her PRRA and H&C applications. The officer did not consider the other two letters very convincing either. The uncle’s letter provided little new information, and Mr. Kaba’s letter did not provide a satisfactory explanation of the considerable implausibilities in her allegations. Moreover, the State party argues that the letter comes from Guinea, whereas Mr. Kaba and the author have lived in Gabon since 1992.
4.8Concerning the new evidence submitted to the Committee on 19 May 2006, the State party maintains that the affidavit from Mr. Al Hassane A. Kaba is not credible for two main reasons. First, the source is not credible since the author of the affidavit is not who he claims to be. The author gave the names of her brothers and sisters in the H&C application and in the personal information form she submitted to support the asylum application. Neither the name nor the date of birth of Mr. Al Hassane A. Kaba appears on this list. Second, the contents of the affidavit are not credible. Sole custody was allegedly granted to Mr. Kaba on 12 January 2006, in other words on the same day the divorce decree was issued. It is unlikely that the Conakry court would have granted Mr. Kaba sole custody without mentioning it in the divorce decree, or in another written judgement of which the author would probably have received a copy. In the absence of credible evidence supporting her allegations, the State party maintains that the author did not establish that the father had been granted custody of Fatoumata. The State party also argues that she did not notify her divorce to the Canadian authorities, or to the Committee in her initial submission, and that she did not explain why she had not done so earlier.
4.9Mr. Bangaly Kaba’s letter does not come from a reliable and independent source and does not explain the major implausibilities and contradictions. Furthermore, it is dated 13 March 2006 but did not appear in the initial submission. Neither the affidavit nor the letter mentions the Kaba family’s alleged political persecution in Guinea. The State party maintains that this “new” evidence should not be taken into consideration by the Committee, since it was never submitted to the Canadian authorities.
4.10The incidence of excision has declined in recent years in Guinea, following various governmental and non-governmental initiatives to raise public awareness of the risks of excision and to retrain women who perform it. The State party also maintains that whatever the incidence of excision in Guinea, it could not be concluded that Fatoumata risks being forced by her father to undergo excision upon her return to Guinea. In fact, the report of the United Nations Children’s Fund (UNICEF) and the Demographic Health Survey confirm that it is women, and more particularly mothers, who decide to have girls excised. Despite the fact that more than 7,000 Guinean women took part in the Survey, no case of excision carried out against the will of the mother or at the request of the father was reported. The same applies to the UNICEF report. Nor is there any mention of reprisals or threats such as those alleged in this case against mothers who refuse to subject their daughters to excision. According to the UNICEF report, shame, stigmatization and loss of social status are the consequences of refusing to follow this tradition. Thus, reportedly, mothers are sometimes subject to family pressure to have their daughters excised, but are not forced to do it by their husbands. The State party therefore maintains that the author would not be obliged to have her daughter excised, just as her mother did not have her excised. The author stated in her personal information form that she was “spared excision during her childhood, thanks to my mother, who opposed it ...”. There is no evidence that Fatoumata might be forced to undergo excision despite her mother’s opposition to this practice. The State party also argues that excision is prohibited in Guinea and perpetrators are liable to severe punishment, under Act No. L/2000/010/AN adopted on 10 July 2000. The author did not establish that she would be unable to obtain State protection if Mr. Kaba sought to have Fatoumata excised.
4.11As far as the alleged violation of article 13 of the Covenant is concerned, the State party maintains that article 13 is not applicable in the present case because the author is not in Canada legally. In addition, there was no violation of article 13 since she presented oral testimony before the IRB, an independent and impartial administrative tribunal, in keeping with the law and the right to a fair hearing. The PRRA and H&C officer is not obliged to grant her a second hearing. The author had the chance to explain all the contradictions in her statement during the IRB hearing, and under article 13 of the Covenant there is no requirement that she be granted a second chance to explain the contradictions. Given that the PRRA officer took account of the contradictions noted by the IRB, and that the author failed to provide a satisfactory explanation of them, there is clearly no need for a further hearing.
4.12Concerning the alleged violation of article 14, the latter does not apply to the determination of immigration status or the protection that may be granted by a State.
4.13With regard to article 7 of the Covenant, the State party maintains that the author has not sufficiently substantiated her allegations for the purposes of admissibility. The allegations are patently unfounded on account of the implausibilities and contradictions noted above. The allegations are not credible and show that the authors do not risk being subjected to treatment prohibited by the Covenant on their return to Guinea. The State party also maintains that the communication is inadmissible insofar as the allegations based on article 9, paragraph 1, and article 18, paragraph 1, of the Covenant are concerned, since those allegations have not been substantiated by any evidence. As to the allegation made with regard to article 24, paragraph 1, of the Covenant, it does not add to the allegations made under article 7 of the Covenant.
4.14The State party emphasizes that the allegations have been examined by independent and impartial national bodies in keeping with the law and the right to a fair hearing. In the absence of proof of any clear error, abuse of procedure, bad faith, clear bias or serious procedural irregularities, the Committee should not substitute its findings of fact for those of the Canadian authorities. It is for the courts of States parties to review facts, the evidence and above all the issue of credibility in particular cases. The author has not shown that there was any irregularity in the decisions of the Canadian authorities that would justify action by the Committee with regard to their findings on the facts and credibility. In such circumstances, the Committee has repeatedly stated that it is not for the Committee to question the evaluation of facts and evidence by national authorities.
5.1On 26 July 2007, the author asserted that she had exhausted all effective remedies. She had already applied for a PRRA and had subsequently filed an application for leave and judicial review of the PRRA decision with the Federal Court, which had refused the application on 25 September 2006. Consequently, the PRRA remedy is no longer available. Moreover, the administrative stay granted is no longer applicable, given the adverse decision of the Federal Court. It is further argued that subsequent PRRA applications do not have the effect of staying the removal order. Thus, the subsequent PRRA application can on no account be considered an effective remedy, since removal of the authors remains enforceable while the application is being assessed. Furthermore, the PRRA officer may take into consideration only “new” evidence meeting the requirements of section 113 of the Immigration and Refugee Protection Act, which, in this case, would mean new evidence not relating to excision or to the earlier problems. Accordingly, the risks already invoked by the author would not be re-evaluated in the light of the new evidence. This remedy, which does not allow for a full and fair analysis of the facts of the case and the evidence of the risks faced, cannot be considered effective.
5.2In addition, contrary to the State party’s arguments, the author cannot apply to the Federal Court for a stay of enforcement of the removal order, pending the result of the PRRA, on the grounds of the risks faced. The Court may only intervene on certain grounds, and the author has already filed an application for a stay of removal with the Federal Court, which was denied on 27 February 2006.
5.3As to the risk of excision faced by Fatoumata, the incidence of excision in Guinea has declined very little, as demonstrated by the Demographic Health Survey, Guinea 2005, prepared by the National Statistics Office: the proportion of women excised fell from 99 per cent in 1999 to 96 per cent in 2005. Moreover, according to the report, there is little hope of a drop in the rate in the future. Lastly, again according to the report, the incidence of excision among women of the Malinke ethnic group, to which the authors belong, is 97 per cent. According to the 2005 report by UNICEF, the incidence of excision among women aged 15-49 is 96 per cent. The 2001 report by the United States Department of State cites a rate of 99 per cent. Consequently, and given Mr. Kaba’s very serious threats in that regard, the risk of excision faced by Fatoumata is very real. Furthermore, the author would not be in a position to prevent her daughter’s excision and protect her in the event that they returned to Guinea. The report by the United States Department of State indicates that excision is often practised without parental consent, when girls are visiting relatives. Lastly, the documentation refers to the lack of protection by the State in Guinea, notwithstanding the fact that excision is illegal.
5.4A recent case similar to the author’s, involving a mother whose two-and-a-half-year-old daughter risked being excised in the event of her return to Guinea, has just been accepted on humanitarian and compassionate grounds (H&C). The Government of Canada, in approving the H&C application, recognized the real risks that excision entails and the need to refrain from removing a little girl who could be exposed to those risks.
5.5With regard to the State party’s other arguments, the author’s allegations have not been given meaningful and thorough consideration. Concerning the IRB decision, the risks invoked were not properly analysed. The IRB did not consider the allegations of risk from the correct standpoint, since it failed to evaluate the author’s application for refugee status on the basis of her social group, i.e., a single woman and victim of domestic violence who is opposing her daughter’s excision and thereby challenging Guinean social customs. The IRB demanded evidence of personal risk, whereas Canadian case law clearly states that membership of a particular social group is sufficient for an application for refugee status to be approved. Moreover, the IRB made its finding that the author lacked credibility on the basis of minor elements, which constitutes a substantial error of law: the author’s claim was subjected to a microscopic and painstaking analysis, contrary to judicial precedent.
5.6In addition, not only are the PRRA and the H&C application not effective remedies, the decisions in question are based on identical errors to those committed by the IRB. The author’s allegations of risk were not properly analysed, owing in particular to the disregard and arbitrary rejection of the new evidence and to the failure to allow the author to give oral testimony. Lastly, the risks of return should be evaluated in the light of the facts and evidence currently available, particularly the new evidence.
5.7Regarding the minor discrepancies, the new medical certificate addresses the contradictions raised by the IRB. The document demonstrates that it was the attending physician, not the author, who was responsible for these contradictions. It cannot be argued, on the basis of the errors committed by the physician, that return poses no risks. On the contrary, the new evidence proves that Fatoumata has not undergone excision; that the father is determined to have his daughter excised; that excision is a common practice; and that there is a lack of protection by the State. The author consulted her attending physician on several occasions in the past. Her ex-husband regularly assaulted her, and she sought treatment from her doctor on 11February 2001 for injuries inflicted by her husband. The prescription dated 11February 2001 does not therefore contradict the author’s allegation that she went to her doctor, yet again, on 20 February 2001; rather, it demonstrates the repeated violence to which she was subjected.
5.8Concerning her trip to France without her daughter, the author has submitted an affidavit stating the reasons for the trip, filed with the immigration authorities on 15 November 2006. She explains that, in Guinea, excision is normally practised on girls aged over 6 or 7 years and that, when she learned of her husband’s intentions, she opposed them. Her fears were increased by the attempted excision in February 2001. The author also explains that, during her absence, her cousin was to take care of her daughter and ensure that the father did not have her excised. The author mentions that a friend had advised her to travel to France to facilitate her subsequent trip to Canada but, owing to difficulties with her travel documents, her daughter was unable to accompany the author to France as originally intended. The author further explains that her friend was to ensure that her daughter obtained the necessary documents so that she could join her as soon as possible. When the author learned that her daughter would be unable to join her, she immediately decided to return. She explains the reason for the delay between the issuance of the Canadian visa and her departure for Canada: she had to gather together the money needed for the journey and wait until her husband left the area on business before she could escape. Thus, it cannot be argued, on the basis of the trip to France, that return to Guinea poses no risk.
5.9As to the trip to Guinea, this element is not relevant to the current evaluation of the risks of return for the authors. It was the author’s friend who helped her complete her personal information form and who misstated a date, thus creating confusion at the IRB hearing. Lastly, regarding the financial resources for the trip to France, she received financial assistance from friends, which enabled her to travel at that time.
5.10Regarding the political persecution of her family, the author explains that the persecution only began in April 2005 with the arrest of her uncle. She was informed of the arrest a few months before receiving the PRRA decision in December 2005. She had thus not succeeded, prior to the PRRA decision, in obtaining all the information and documentation necessary to substantiate these allegations, and accordingly she had not yet informed the immigration authorities of the persecution.
5.11All of the evidence, taken together and properly evaluated, corroborates the allegations of risk. The affidavit by Mr. Al Hassane A. Kaba is credible: he describes himself as the author’s brother but is in fact her cousin, that is, the son of her father’s older brother. It is customary for Guineans to refer to their male cousins as brothers. The author did not include her cousin in the list of family members abroad because the list covered only brothers and sisters having the same father and/or the same mother. Concerning the lack of specific provisions on custody in the divorce decree, custody of minor children aged over 7 years is automatically granted to the father. Consequently, it is not unlikely that the decree would be silent on the matter. As to the author’s alleged delay in informing the authorities of her divorce, she was waiting to receive official divorce papers before doing so. Lastly, the fact that some documents do not corroborate the risks invoked by the author can on no account be regarded as contradicting the author’s allegations, which moreover are corroborated by other documents.
5.12Regarding article 13 of the Covenant, it cannot be claimed that the author’s status precludes her from submitting the reasons against her expulsion. Furthermore, every person has the right to a hearing by a competent, independent and impartial tribunal. The errors committed, and the evidence presented, confirm the risk of cruel, inhuman or degrading treatment or punishment. The right to protection set out in articles 7 and 9 of the Covenant is applicable. Concerning article 18 of the Covenant, the right to freedom of thought, conscience and religion cannot but include the right to refuse to subject one’s minor daughter to any degrading and dangerous religious practice such as excision. Lastly, the right of the child to such measures of protection as are required by her status as a minor, provided for in article 24 of the Covenant, is applicable in this case.
Decision of the Committee on admissibility
6.1On 1 April 2008, at its ninety-second session, the Committee considered the admissibility of the communication.
6.2With regard to the claims under articles 9 and 18 of the Covenant, the Committee considered that they were not sufficiently substantiated, and concluded that they were inadmissible under article 2 of the Optional Protocol.
6.3With respect to the author’s contention that she was not afforded an effective remedy to contest her and her daughter’s expulsion, the Committee observed that the author did not substantiate how the Canadian authorities’ decisions failed thoroughly and fairly to consider their claim that they would be at risk of violation of article 7 if returned to Guinea. In these circumstances, the Committee did not need to determine whether the proceedings relating to the authors’ expulsion fell within the scope of application of article 13 (as a decision upon which an alien lawfully present is expelled) or article 14 (as a decision relating to civic rights and duties). This part of the communication was accordingly inadmissible under article 2 of the Optional Protocol.
6.4The Committee recalled that States parties are under an obligation not to expose individuals to a real risk of being killed or subjected to cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. The Committee therefore needed to decide whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the removal of the author and her daughter to Guinea, there was a real risk that they would be subjected to treatment prohibited by article 7 of the Covenant. In the present case, the Committee noted that the author’s allegations had already been carefully examined by the Canadian authorities in connection with the application for refugee status, the PRRA and H&C applications and the application for the stay of a removal order before the Federal Court. Having examined those allegations and the evidence and having heard the author’s oral submissions, the Canadian authorities had concluded that she lacked credibility and was not at risk of being persecuted or subjected to unlawful treatment on her return to Guinea. The Committee considered that Ms. Kaba had not shown sufficiently why these decisions were contrary to the standard set out above. Nor had she adduced sufficient evidence in support of a claim that she would be exposed to a real and imminent risk of violation of article 7 of the Covenant if she was returned to Guinea. The Committee therefore considered that the author’s claim was inadmissible under article 2 of the Optional Protocol as insufficiently substantiated for the purposes of admissibility.
6.5As far as Fatoumata and the alleged violation of articles 7 and 24 of the Covenant are concerned, the Committee observed that the “new” documents submitted by counsel to the Committee on 19 May 2006, including the divorce decree and Guinean legislation which is said to give custody of children automatically to the father, had not been provided to the Canadian authorities. The Committee noted the State party’s argument that domestic remedies had not been exhausted and that it was not too late to submit a further application for a pre‑removal risk assessment and an application for a stay of the expulsion order on the basis of the “new” documents. However, the Committee noted that the State party had rejected this evidence on the grounds that it was not credible. Without embarking on a detailed examination of counsel’s arguments on the effectiveness of the pre-removal risk assessment, the Committee, in the light of the State party’s position, considered that a further application for a pre-removal risk assessment would not constitute an effective remedy for Fatoumata under article 5, paragraph 2 (b), of the Optional Protocol. The Committee also noted that the evidence in the file indicated that up to 90 per cent of girls undergo excision in Guinea and finds that the claims presented on Fatoumata’s behalf, under articles 7 and 24 of the Covenant, read together were sufficiently substantiated for the purposes of admissibility.
6.6The Committee therefore decided that the communication was admissible insofar as it raised issues under article 7 and article 24, paragraph 1, of the Covenant in respect of Fatoumata Kaba. The Committee requested the State party to provide its views on the information relating to current Guinean legislation and practice relating to the custody of children after divorce, and the incidence of excision in Guinea.
Additional observations of the State party regarding the admissibility of the communication
7.1On 13 January 2009, the State party submitted additional observations on admissibility and merits and requested the Committee to reconsider its admissibility decision and to declare the communication inadmissible as a whole on grounds of abuse of process or, if an abuse of process were not acknowledged by the Committee, to declare it inadmissible on grounds of failing to substantiate the claim. If the Committee decided nevertheless to uphold the admissibility of the communication concerning Ms. Fatoumata Kaba, the State party would request the claims under articles 7 and 24, paragraph 1, of the Covenant to be rejected as unsubstantiated.
7.2The State party engaged a lawyer practising in Guinea to collect the information requested by the Committee in its admissibility decision of 1 April 2008. As far as child custody in cases of divorce is concerned, the lawyer confirmed that article 359 of the Civil Code of Guinea is still in force, as the bill amending the article is pending adoption. Under article 359, children are entrusted to the care of their father once they reach the age of 7, unless a special agreement between the parents specifies otherwise. However, the State party notes that, according to the inquiry carried out by the lawyer, the divorce decree submitted by the author is forged. The senior registrar of the Court of First Instance in Kaloum/Conakry, which allegedly rendered the decree in question, confirmed that, as there was no record of the divorce in the register, the decree was not authentic. Furthermore, the decree could not have been granted on 12 January 2006 bearing the number 26, as the court had rendered only 9 civil judgements on that date. The registrar also provided a copy of the seal of the registrar of the court, confirming that the seal affixed to the copy of the decree submitted by the author was not authentic. The State party maintains that this new evidence shows beyond a reasonable doubt that the author’s allegations are not credible and thereby undermine the credibility of the letters of Mr. Al Hassane A. Kaba, the author’s so-called brother, and the letter of Mr. Bangaly Kaba, her so-called uncle, which both mentioned the divorce. In view of this blatant falsification of evidence, the State party requests the Committee to declare the communication inadmissible as a whole on grounds of abuse of process, in accordance with article 96 (c) of its rules of procedure.
7.3The State party further considers that the evidence pertaining to the alleged divorce settlement giving custody of Fatoumata Kaba to her father should be rejected and declared inadmissible on grounds of failure to substantiate the claim. The allegation that the custody of the child would be granted to the father is based exclusively on article 359 of the Civil Code of Guinea, which would have been enforced following the alleged divorce. There is no evidence or allegation that the child’s father could have any authority over the child without a divorce decree or against the mother’s wishes. The State party recalls that the child’s father does not appear to live in Guinea, since, according to the author, she and her husband had lived in Gabon since 1992 and her husband was still there in 2001 when the author and her daughter left the country for Canada. The only evidence linking Mr. Kaba to Guinea since 2001 is a letter that he allegedly wrote to the author in December 2002 threatening to kill her. Given that the decree was forged, the State party doubts that this letter is authentic. The author has not shown in any case that she had contacted the Guinean authorities or requested protection for herself and her daughter. The State party therefore doubts the couple’s intention to divorce and the supposed ill will of the author’s husband.
7.4Concerning the incidence of excision in Guinea, the State party has relied on expert reports that show the prevalence of excision in Guinea among girls between 10 and 14 years old to be below 89.3 per cent. The State party maintains, however, that this figure is not a reliable measure of the risk of excision that Fatoumata Kaba personally faces, since it is women, particularly mothers, who decide on their daughters’ excision. No cases of excision carried out against the mother’s wishes have been reported. The State party adds that the author has not undergone excision, as her mother had made a stand against it, and that, likewise, the author could stand in the way of her daughter’s excision on their return to Guinea. According to a survey carried out in 2005, only 15.2 per cent of Guinean mothers who had not undergone excision had at least one daughter who had been excised. The author’s daughter was already beyond the age when girls run the highest risk of excision. Statistics confirm that the daughters of women who have not undergone excision are much less exposed to the risk of excision. Based on these statistics, the State party concludes, given that it is the mother who has the power to decide on matters involving excision, that the author’s allegations are not sufficiently substantiated for the purposes of admissibility and excision is not a necessary and foreseeable consequence of Fatoumata Kaba’s expulsion to Guinea.
7.5If the Committee decided nevertheless to uphold the admissibility of the communication from the viewpoint of Fatoumata Kaba, the State party would ask it to reject the allegation on the merits.
Author’s comments on the State party’s observations
8.1On 19 May 2009, the author, represented by a new counsel, reiterated the arguments previously advanced and added that the general literature on excision shows that the several members of the family have a say in whether excision is performed and that it is extremely rare for the decision to be perceived as concerning only the parents given that excision affects the social status of the excised person and her family. These reports also state that excision is sometimes performed without the consent of the child and/or her mother. In this case, as the threat of excision came not only from the father but also from the father’s family, the threat did not hinge solely on the divorce decree or the father’s wishes.
8.2The author refers to the Civil Code of Guinea, which stipulates that the father has authority over the child until the age of majority, including the right to inflict corporal punishment, even in the event of divorce. Given that Fatoumata Kaba’s father has never been stripped of parental custody, his ties with his daughter still exist. The author adds that the Guinean authorities do not intervene in family disputes. Despite the fact that excision is illegal in Guinea, no excision practitioner was prosecuted in 2008 for performing an excision. The author could not, therefore, turn to the State for protection in the event of a dispute with her husband over the issue. Furthermore, Mr. Kaba lives in Guinea, as the divorce decree attests. In support of this claim, the author provides a letter from relatives testifying that they have encountered Mr. Kaba in Guinea. On the basis of certain governmental reports and reports from NGOs, she insists that the risk of excision concerns minors between the ages of 4 and 17 and that excision may also be performed on adult women.
8.3The author also reiterates in her comments the risks that she faces if she is expelled to Guinea.
8.4Lastly, as far as the authenticity of the divorce decree is concerned, the author engaged a Guinean lawyer to clarify the State party’s allegation that the decree is a forgery and, if necessary, to institute new divorce proceedings. She insists nevertheless that she was not present during the proceedings and that she was represented by family members who confirm that they participated in them. Her lawyer contacted a bailiff in Conakry, who informed the lawyer that the registrar who allegedly signed the divorce decree did not recognize the signature or the seal, whereas another registrar did recognize his signature, which attests to the corruption among registrars in this case. The lawyer provided evidence of the use of several different seals by the registrar’s office in Conakry, including the seal affixed to the divorce decree. The author thus concludes that the allegations of the State party challenging her credibility or blaming her for errors, fraud or breaches are unfounded. Lastly, the author informs the Committee that new divorce proceedings have been instituted resulting in her being awarded custody of Fatoumata Kaba in a judgement rendered on 15 April 2009.
8.5The author sent a copy of the new divorce decree in a letter dated 8 June 2009 and noted that even though she had obtained custody of the child, the child still had a justifiable fear of undergoing excision, since her father maintained authority over her. The author maintains that Mr. Kaba is only using the divorce granted in her favour as a scheme to obtain the child’s repatriation. She adds that there is no doubt as to Mr. Kaba’s residence in Guinea, as evidenced by the record of the new divorce decree.
Review of admissibility
9.1The Human Rights Committee has examined the present communication in the light of all the information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.
9.2The Committee takes note of the State party’s request for reconsideration of the admissibility decision and to declare the communication inadmissible as a whole on grounds of abuse of process, as the request was based on new evidence that questioned the credibility of the author’s statements and the communication as a whole. Although the Committee wishes to give the State party’s representation their full weight, it considers, nevertheless, that the risk mentioned by the author on behalf of her daughter Fatoumata Kaba is sufficiently serious for the Committee to take it up in connection with the merits of the case, on grounds of reasonable doubt.
9.3The Committee therefore proceeds with the consideration of the merits of the communication in view of the issues raised by articles 7 and 24, paragraph 1, of the Covenant concerning Fatoumata, the author’s daughter.
Consideration of the merits
10.1As to the author’s claim that expelling her daughter Fatoumata Kaba would entail a risk of her being subjected to excision by her father and/or members of the family, the Committee recalls that States parties are under an obligation not to expose individuals to a real risk of being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment upon entering in another country by way of their extradition, expulsion or refoulement. In this connection, there is no question that subjecting a woman to genital mutilation amounts to treatment prohibited under article 7 of the Covenant. Nor is there any question that women in Guinea traditionally have been subjected to genital mutilation and to a certain extent are still subjected to it. At issue is whether the author’s daughter runs a real and personal risk of being subjected to such treatment if she returns to Guinea. The Committee notes the State party’s argument that the lawyer engaged by it to obtain the information requested by the Committee established that the divorce decree granting custody of Fatoumata to Mr. Kaba, the author’s husband, is a forgery. It notes in support of this argument that the investigation conducted by the State party showed that the registrar’s seal affixed to the decree was not authentic and that the Kaloum/Conakry court had rendered only nine judgements on 12 January 2006 (the date that the decree was purportedly granted) and that it was therefore impossible for the disputed decree to bear number 26. The Committee notes the argument that this new evidence undermines the credibility of the communication as a whole and all the facts submitted by the author referring to the alleged decree.
10.2The Committee also notes that, according to the State party, the allegation that custody of the child would be granted to the father was based on a provision of the Civil Code that would be applied pursuant to the disputed decree and that there was no proof that the father could exercise such authority in the absence of this decree; it further notes that the decree and a letter from Fatoumata Kaba’s father, the authenticity of which has also been challenged by the State party, are the only evidence that the father resides in Guinea. The Committee also notes that according to the State party, information on the incidence of excision in Guinea is not a reliable measure of the personal risk faced by Fatoumata Kaba, as it is the women, especially mothers, who decide on excision, and the risk decreases once the child reaches the age of 14.
10.3The Committee notes the author’s argument that the decisions on excision never rest on any one person but rather on several members of the family. It also notes the argument that the father maintains authority over the child until the age of majority regardless of the outcome of a divorce decree. It further notes that, according to the author, the Guinean authorities do not interfere in family disputes, and excision is widely practised despite the legal prohibition against it. It also notes that the risk of excision concerns minors between the ages of 4 and 17 and that excision may also be performed on adult women. As regards the authenticity of the divorce decree, the Committee notes the author’s argument that she herself had not attended the proceedings but was represented by members of the family, that the seal used exists, even though it was used by another registrar, and that the author had sued again for divorce and a decree was handed down on 15 April 2009 giving her custody of her daughter. Lastly, the Committee notes that, according to the author, there is no question that Mr. Kaba resides in Guinea and that he could therefore exercise authority over Fatoumata Kaba.
10.4The Committee believes that the credibility of the allegations made by the author was affected by the new evidence provided by the State party showing that the divorce decree of 12 January 2006 was a forgery. Furthermore, the author was unable to prove that she had not been implicated in producing the forgery, as some members of her family purportedly participated in non-existent proceedings. The fact that the author then instituted new divorce proceedings suggests that the aforementioned proceedings had never been instituted.
10.5As for the risk faced by Fatoumata, who is now 15 years old, the information contained in the file does not enable the Committee to establish that her removal would entail a personal risk of being subjected to excision in Guinea, given that she remains under the authority of her mother; that it would seem to be women, and more specifically mothers, who decide about excision; that Ms. Kaba herself has not been subject to excision; and that the risk of excision decreases once girls reach the age of 14 years. The Committee thus concludes from this and other information submitted by the author throughout the proceedings that the author has not been able to establish that her and her daughter’s removal would entail a violation of the author’s rights under articles 7 and 24, paragraph 1, read together.
11.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not reveal a violation by Canada of the articles of the Covenant referred to by the author.
[Adopted in English, French and Spanish, the French 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.]