Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3649/2019 * , ** , ***

Communication submitted by:Abdilahi Ahmed Elmi (represented by counsel, Vincent Wong and Idowu Ohioze)

Alleged victim:The author

State party:Canada

Date of communication:22 August 2019 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 23 August 2019 (not issued in document form)

Date of adoption of Views:1 November 2022

Subject matter:Expulsion from Canada to Somalia

Procedural issues:Failure to exhaust domestic remedies; Non‑substantiation of claims

Substantive issues:Right to life; risk of torture and ill-treatment; Right to family life

Articles of the Covenant:6, 7, 12 (4), 17 and 23 (1)

Articles of the Optional Protocol:2, 3 and 5 (2) (b)

1.1The author of the communication is Abdilahi Ahmed Elmi, a Somali national born in 1985. His application for asylum has been refused by the State party. The author argues that, by deporting him to Somalia, the State party would violate his rights under articles 6 (1), 7, 12 (4), 17 and 23 (1) of the Covenant. The Optional Protocol entered into force for the State party on 19 August 1976. The author is represented by counsel.

1.2On 23 August 2019, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party to refrain from deporting the author to Somalia while his case was under consideration.

1.3On 22 October 2019, the State party requested the Committee to lift the interim measures granted in the author’s favour, on the grounds, firstly, that the author’s allegations did not provide evidence of any violation of articles 6 (1), 7, 12 (4), 17 and 23 (1) of the Covenant and, secondly, that the author had not exhausted domestic remedies. On 6 December 2019, the Special Rapporteurs on new communications and interim measures decided not to grant the State party’s request to lift the interim measures granted in favour of the author.

The facts as submitted by the author

2.1The author was born in Somalia, where he lived with his mother without knowing his father. Following the outbreak of civil war in Somalia, the author’s family was forced to flee the country when he was still young. He entered Canada with his mother. In 1996, the author and his mother obtained refugee status in Canada. Shortly thereafter, however, the Canadian child welfare authority took the author into its care and placed him in a foster home. The author had adjustment problems as a child. He developed an alcohol dependency and had psychological problems attributable to resurgent memories of the violence he had experienced while in Somalia. Before the author reached the age of majority, no parental or institutional authority had submitted any application for permanent resident status in Canada on his behalf.

2.2Upon reaching full legal age, the author applied for permanent residence in Canada. On 11 May 2011, his application was refused. On 14 April 2014, the author was the subject of a report on inadmissibility, issued pursuant to paragraph 44 (1) of the Immigration and Refugee Protection Act, following his conviction for armed assault on 18 December 2012 and for breaking and entering on 20 June 2013. Since both offences are punishable by a term or imprisonment of at least 10 years’ imprisonment, the author was declared inadmissible in Canada on grounds of serious criminality pursuant to paragraph 36 (1) of the aforementioned Act. Since the author still had protected person status in Canada, the State party requested a danger opinion from the Minister of Immigration, Refugees and Citizenship so that his removal from the country could be effected in compliance with the non-refoulement provisions set forth in the Immigration and Refugee Protection Act. The danger opinion was issued on 24 June 2019 and, on 26 June 2019, the author was informed that he would be deported to Somalia, either to Mogadishu or to Kismayo. He was then informed that his deportation was scheduled for 26 August 2019.

2.3The author requested an administrative deferral of his deportation on the grounds of the humanitarian and security situation in Somalia, the fact that he had no ties with the country and did not speak the language, and the risk of torture and ill-treatment that he might face. His request for administrative deferral was refused. On 16 August 2019, the author filed an application for leave to apply to the Federal Court for judicial review of the danger opinion and for a stay of his removal. The Federal Court scheduled a hearing to consider the request for 22 August 2019. However, given that his deportation was scheduled for 26 August 2019, the author submitted this communication to the Committee together with a request for interim measures in order to prevent his removal in the event that the Federal Court did not grant his request for a stay of execution.

2.4The author states that this communication has not been submitted to any other authority for judgment or settlement. He affirms that he has exhausted all available domestic remedies.

The complaint

3.1The author claims that his deportation to Somalia would constitute a violation by the State party of his rights under articles 6 (1), 7, 12 (4), 17 and 23 (1) of the Convention.

3.2The author maintains that the State party would be violating articles 6 (1) and 7 of the Covenant by returning him to Somalia, in view of the general situation in the country and the personal risk he faces. He argues that his lack of clan affiliation, Western identity and appearance and lack of social networks in Somalia make him an easy target for forced recruitment by pirates and militiamen and would expose him to violence and all kinds of abuse. He disputes the immigration officer’s assessment of the risk he would face if returned to Somalia, asserting that the situation in Somalia remains extremely complex, not least because of the violence used by Al-Shabaab, both in Mogadishu and in Kismayo, the regions to which the Canada Border Services Agency is looking to send him. He recalls that, due to the sensitive security situation in Somalia, the State party strongly advises its citizens not to travel to this country and to leave immediately should they find themselves there. The author states that the humanitarian situation in Somalia is catastrophic, the number of displaced persons having increased in recent years, and that, in 2019, more than 4.2 million people were in need of humanitarian aid. He also recounts that this crisis has been exacerbated by drought, ceaseless conflict and food insecurity.

3.3The author maintains that his removal to Somalia would violate his rights under article 12 (4) of the Covenant as it would constitute arbitrary interference with his right to enter his own country. He also maintains that, for the purposes of article 12 of the Covenant, Canada is his country insofar as he has lived there since the age of 10 years old, his family lives there and he has no family or other ties in Somalia. The author asserts that no State other than the State party better represents his own country, since he has been resident there for almost 25 years and has close personal ties in the country, while he has no such ties anywhere else. The author also maintains that he was deprived of his nationality when he was a minor. Had it not been for this deprivation, he would have acquired Canadian citizenship. He claims that he has never had a Somali nationality document, passport or birth certificate and that he does not meet the conditions necessary to obtain Somali nationality as he has not lived in the country for at least seven years, as required under Somali legislation. The author maintains that the State party failed to apply for permanent residence or citizenship on his behalf when he was a minor, even though the State party was the only authority that could have asked for this formality to be carried out on his behalf. The author further asserts that the State party’s desire to protect the public and its concern about his criminal record, while not insignificant, are not of a degree sufficient to justify depriving him of the right to enter his own country. The author maintains that, if he is returned to Somalia, it will be in effect impossible for him to return to Canada given the country’s immigration regulations.

3.4The author also believes that his return to Somalia would constitute arbitrary interference with his right to family life, in violation of articles 17 and 23 (1) of the Covenant. He points out that his family ties are in Canada and that removing him from the country would mean depriving him of his family environment. He claims that his deportation to Somalia would separate him from his mother and his half-siblings, who are Canadian citizens. He considers this interference in his family life to be disproportionate and arbitrary. The author indicates that, once deported to Somalia, he will not be able to return to Canada to visit his family. He is also deeply concerned about the risks he would face if deported to Somalia, a country he has never visited since childhood. He does not speak the language and does not understand the norms and customs of Somali society. He has no family ties or social networks in this country.

3.5On 21 October 2019, in response to a request from the Committee formulated on 23 August 2019, the author submitted additional information relating in particular to the exhaustion of domestic remedies and the return of refugees to Somalia, especially those returning from Western countries.

3.6The author reiterates that he has exhausted all available domestic remedies. He specifies that, after the danger opinion was issued against him, on 10 August 2019 he was put in contact with a lawyer thanks to community assistance from the African-Canadian Civic Engagement Council. He further specifies that, prior to this date, he did not have the financial resources necessary to hire a lawyer. He states that his deportation was scheduled for 26 August 2019 and that, on 12 August 2019, his lawyer submitted a formal request for deferral of his removal to the Canada Border Services Agency. This request was refused on 13 August 2019. On 16 August 2019, the author’s lawyer requested leave to apply for judicial review of both the danger opinion and the refusal to defer removal. The lawyer also filed a motion for deferral of removal until the judicial review could be carried out. The request to defer the deportation was rejected on 23 August 2019 by a Federal Court judge.

3.7The author reiterates that his deportation to Somalia would violate his rights under articles 6 (1), 7, 12 (4), 17 and 23 (1) of the Covenant. He further states that, on 23 August 2019, his application to the Federal Court for deferral of removal was refused, meaning that his removal would be immediate. The author also specifies that he is still awaiting a final decision from the Federal Court on his request for leave to apply for judicial review of the danger opinion and the Canada Border Services Agency’s refusal to grant an administrative deferral of removal. He further specifies that he is still in Canada only because the interim measures requested by the Committee were granted. He points out, however, that, as in Warsame v. Canada, for the purposes of admissibility it is not necessary for him to submit an application for permanent residence on humanitarian grounds. He takes the view that the mere existence of applications pending does not prevent the Committee from finding that the conditions of admissibility have been met.

3.8The author reiterates that he faces a personal risk if returned to Somalia, owing to his lack of protection there, his Western appearance and identity, his lack of knowledge, support, and a protection network in Somalia and the fact that he is at risk of forced recruitment.

3.9The author recalls that the humanitarian situation in Somalia remains precarious. He also recalls that Al-Shabaab has carried out dozens of attacks in Somalia and continues to control several areas no longer under the control of the authorities. The author cites several factors, including the bomb attacks mentioned by the Secretary-General of the United Nations in his August 2019 report on Somalia, as evidence of the country’s fragile situation. The author recalls that, in addition to security concerns, Somalia is facing a serious humanitarian crisis linked to famine and disease, including malaria and cholera. The author reiterates that, in addition to this deteriorating general situation, he faces specific personal risk factors related to the fact that he has no ties in this country. He never knew his father and has few details about his origins. He reports that, in Canada, he was separated from his mother and placed in foster care, and subsequently developed an alcohol dependency. He claims to have constantly battled his addiction, with the support of several professionals.

3.10The author reiterates that the fact that he is not affiliated to any clan in Somalia is likely to put him in danger. He explains that, although his mother states that he is a member of the Darod clan, he will not be able to prove that he belongs to this clan when he arrives in Somalia and will be treated as a member of a minority clan. The author recalls that several men belonging to his family have been killed in battles with rival clans. Furthermore, he states that he was rejected by his father’s family at birth and notes that there is no reason to believe that they would be ready to welcome him 34 years later.

3.11The author also reiterates that his Western appearance is likely to exacerbate the risk to which he is exposed, and that Somalis returning from abroad face a high risk of insecurity, murder, violence and abduction. He believes that the risk is even higher for him because of his alcohol dependency, assuming that he is not treated in Canada. He also believes that alcoholism, considered a practice contrary to Islam, can fuel animosity from society and could put his life in danger.

3.12The author notes that, in order to become a Canadian citizen, it is necessary to have been permanently resident in Canada for 1,095 days in the course of the five years preceding the application, and that he meets this condition. He indicates that, since he could not apply for permanent residence as a minor, his mother decided to do so on his behalf but could not afford to pay the fee of 500 Canadian dollars. The author states that, when he came of age, he applied for permanent residence in Canada and was refused. He urges the Committee to declare that, if returned to Somalia, he would be irreparably harmed by the violation of his rights under articles 6 (1), 7, 12 (4), 17 and 23 (1) of the Covenant.

State party’s observations on admissibility and the merits

4.1On 22 October 2019, the State party submitted its observations on the admissibility and the merits of the communication. The State party adds to the statement of facts submitted by the author and states that, in the period 2000–2018, the author was convicted of a considerable number of serious criminal offences including assault, armed assault, drug trafficking, burglary and firearm-related offences. He has been the subject of more than 125 criminal charges and over 50 convictions. He still has a number of charges pending, including two counts of cocaine trafficking. The State party recalls that the author attributes his criminal conduct to alcohol. However, when the author was placed in a treatment programme, he did not cooperate with the medical staff trying to achieve his rehabilitation. He has shown a consistent lack of respect for the police force and does not seem to be motivated by any desire for rehabilitation. The State party reports that the author’s numerous criminal acts have led to him being declared inadmissible in Canada and that thus would have resulted in the loss of his permanent resident status had it been granted.

4.2The State party specifies that a deportation order was issued against the author in 2014. In June 2019, the Minister of Immigration, Refugees and Citizenship issued a danger opinion against him because of his serious criminality and the likelihood of his reoffending. After assessing the risk that the author would face and taking humanitarian and compassionate grounds into account, the immigration officer decided that the author could be returned to Somalia. The State party notes that the author failed to apply to the Federal Court for leave to apply for judicial review of this negative decision within the required time frame.

4.3The State party points out, in connection with his application for permanent residence, that the author failed to reply to any of the three letters that were sent to his address and did not appear for interviews with the Canada Border Services Agency despite three summonses.

4.4The State party recognizes that article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not admit any exceptions to the prohibition on return to a country in which the author of a communication may be exposed to torture. This position has been confirmed by the Supreme Court of Canada, which, however, does not rule out derogation from this principle in very exceptional circumstances.

4.5The State party maintains that the decision on the danger opinion issued against the author is subject to review, with the leave of the Federal Court, provided that the applicant demonstrates that there is “a fairly arguable case” or “a serious issue to be tried”. However, the author did not seek leave to apply for judicial review of the danger opinion, as he was entitled to do, within the time limit set for this purpose. The State party adds that, in the decision of 13 August 2019, concerning the refusal of his request to the Canada Border Services Agency for administrative deferral of removal, the officer who ruled on the request noted that the risks to which the author was exposed in Somalia had already been thoroughly assessed in the context of his danger opinion. The officer noted that, although there was a statutory moratorium on removals to Somalia, persons such as the author who were inadmissible on grounds of serious criminality were not covered by this moratorium. The officer took the view that the author would not be detained or ill-treated by the Government of Somalia on the grounds that he could not prove his nationality since the Government had issued him with a temporary travel document stating that he was a Somali national and that Mogadishu was his place of birth.

4.6The State party recalls that the author applied to the Federal Court for a stay of execution of the deportation order, at the same time filing an application for leave to apply for judicial review of the refusal to defer consideration of his asylum application. The State party recounts that the Federal Court dismissed the author’s application in its decision of 23 February 2019, ruling that he had demonstrated neither that his application raised a serious issue nor that he would suffer irreparable harm if deported to Somalia, and that, in its assessment of the negatives of his removal, the public interest prevailed.

4.7The State party recognizes that the security situation in Somalia remains unpredictable, particularly in view of the violence fuelled by Al-Shabaab. It notes, however, that a recent report on the humanitarian and security situation in Somalia states that there is no general risk of torture or inhuman or degrading treatment in Mogadishu, and that the presence of the African Union Mission in Somalia has a deterrent effect on Al-Shabaab, making it difficult for the group to enter the city. In addition, the State party reports that, since December 2013, more than 34,000 Somalis have been expelled from various countries to Somalia in response to irregular migration problems and security concerns. The State party also reports that the Office of the United Nations High Commissioner for Refugees is working with the Governments of Kenya and Somalia to facilitate the return of several tens of thousands of Somali refugees and that there is a broad, multi-sectoral approach to facilitating the sustainable reintegration of returnees. In view of these massive returns, there is no reason to believe that the author would be a particular target or that he would be at real personal risk if returned to Somalia.

4.8The State party stresses that persons who are not associated with the security forces, the Government, non-governmental organizations or international organizations are unlikely to be targets of Al-Shabaab. Moreover, contrary to the author’s assertion, persons without any clan affiliation are not at risk of violence in Mogadishu. The State party recalls that the Committee has previously found that an absence of clan or family support, lack of knowledge of the local language, Western identity and appearance and a lack of local knowledge, experience and support networks were not sufficient grounds to conclude that the author’s rights under articles 6 (1) and 7 of the Covenant would be violated in the event of his or her return to Somalia.

4.9The State party further argues that the travel warning concerning the dangerous situation in Somalia that is mentioned by the author is aimed solely at Canadian travellers. It maintains that the intent of the author’s communication is to ask the Committee to review decisions handed down by the national courts. The State party recalls that the Committee is not a court of appeal and that its remit does not include taking the place of national courts in assessing the facts.

4.10With regard to the allegations of a violation of article 12 (4) of the Covenant, the State party recognizes that the scope of the phrase “his own country” is not limited to nationality and takes account of factors including long-term residence, the existence of close personal and family ties and the desire to remain there as well as the absence of such ties elsewhere. However, the State party argues that, contrary to the author’s assertions, he does have links with Somalia: he was born there and lived there until reaching the age of 9 years old. The State party notes that Somalia issued the author with a temporary travel document which states that he is a Somali national. It explains that the application for permanent residence submitted on the author’s behalf by his mother when he was 12 years old was incomplete and was therefore returned to his mother, who failed to pursue it further. At the age of 17, with the assistance of a lawyer, the author applied for permanent resident status on humanitarian grounds. The author subsequently ignored several requests for additional information and failed to attend various scheduled interviews. The State party recounts that the author has been prosecuted for numerous offences and that his application for permanent residence was not accepted. Subsequently, he failed to appeal this refusal before the Federal Court and provided no explain for his failure to do so. The State party is thus of the view that the claim based on article 12 (4) of the Covenant is inadmissible on the grounds of failure to exhaust domestic remedies. The State party stresses that the author committed numerous criminal acts that resulted in his being declared inadmissible in Canada and that this would have led to his permanent residence status being revoked had it been granted to him.

4.11With regard to the author’s allegations of violations of articles 17 and 23 (1) of the Covenant, the State party recalls that the author was placed with a foster family when he was a teenager. The State party notes that the author claims to be close to his half-siblings, that he has no spouse or children in Canada, and that he has provided no proof of employment or any involvement in community life. The State party also notes that the author states that he has no family ties in Somalia. It further observes that the immigration officer who assessed the author’s case took the view that the support the author received from his family in Canada carried little weight in terms of his rehabilitation and that his lengthy criminal past compromised his ability to forge ties with the community in Canada. While recognizing that a person’s separation from his or her family may be akin to interference in his or her family life, the State party recalls the Committee’s position that the mere fact that certain members of a family have the right to remain in the territory of a State party does not necessarily make the removal of another member of the same family an interference of this kind. The State party argues that the interference alleged by the author in violation of article 17 of the Covenant is neither arbitrary nor unlawful.

4.12The State party notes that the author has not provided any evidence and has not proffered any arguments to show that the deportation order that would result in his separation from his family was in any way arbitrary, unreasonable or disproportionate in view of his extensive criminal activities. It recalls that the immigration officer who assessed the author’s situation in the context of the danger opinion issued against him decided that, given the seriousness of the offences with which the author has been charged, the interference in his family life that his removal to his country of origin would constitute is not in any way arbitrary or unreasonable. Consequently, the State party considers that the claims concerning articles 17 and 23 (1) of the Covenant are inadmissible on grounds of lack of substantiation, in accordance with articles 1 and 2 of the Optional Protocol to the Covenant and rule 99 (b) of the Committee’s rules of procedure. The State party further considers that, as the author did not seek a judicial review of the decision to refuse his application for permanent residence and also failed to challenge the decision to issue a danger opinion in his case, his claims under articles 17 and 23 (1) of the Covenant are also inadmissible on grounds of failure to exhaust domestic remedies under articles 2 and 5 (2) (b) of the Optional Protocol.

Author’s comments on the State party’s observations

5.In comments submitted on 3 December 2019, the author states that he would like the Committee to maintain the interim measures granted. He considers that the State party’s assertion that no request for leave to apply for judicial review of the danger opinion issued against him was filed within the time limit is manifestly inaccurate insofar as the State party itself filed a response to his request for leave to apply for judicial review of the danger opinion dated 10 October 2019. The matter is currently pending before the Supreme Court. The author specifies, however, that this application does not provide for a legal stay of deportation, making interim measures necessary. The author maintains that domestic remedies have been exhausted, rendering the State party’s arguments concerning the admissibility of the communication moot.

State party’s additional observations

6.1On 30 January 2020, the State party submitted additional observations. It reiterates that the author’s personal situation was examined in detail by the national authorities, who concluded that he would not be at risk if returned to Somalia and that his return would not constitute a violation of articles 6 and 7 of the Covenant. The State party reiterates that the author has not demonstrated that Canada is his own country within the meaning of article 12 (4) of the Covenant and that the interference with his family that his deportation would cause would be arbitrary or disproportionate within the meaning of articles 17 and 23 (1) of the Covenant.

6.2The State party maintains that the author has not exhausted available domestic remedies and that his communication must therefore be declared inadmissible. In this regard, it reiterates its claims: (a) regarding the author’s failure to respond to requests for information and interviews following his application for permanent residence in February 2003, which could have opened up a path to Canadian citizenship; (b) as to the fact that the author has not appealed against the decision to refuse his application and has not explained his failure to do so; and (c) as to the author’s failure to appeal in a timely manner against the danger opinion issued against him. The State party recalls that the Committee has already determined that authors are required to comply with the procedural rules applicable to the exhaustion of domestic remedies unless the said rules are unreasonable or arbitrary. The State party considers that, since the author has given no explanation as to why his appeal was delayed or why the time limits were arbitrary, his communication should be declared inadmissible. The State party also recounts that the Federal Court recently refused the author’s application for leave to apply for judicial review of the danger opinion issued against him. Consequently, he currently has no domestic remedies pending. The State party argues that the author cannot be allowed to fail to act on his application for permanent resident status and then, 17 years later, complain to the Committee that he was arbitrarily deprived of his citizenship. The author also failed to respect the Federal Court’s filing deadlines, which are reasonable, yet is now complaining to the Committee about the impact of the danger opinion issued in his case. Consequently, his communication is inadmissible on grounds of failure to exhaust available domestic remedies under article 5 (2) (b) of the Optional Protocol.

6.3The State party highlights that the author provided information on his clan membership for the first time in his submission to the Committee. It notes that, in support of his comments of 21 October 2019, the author submitted to the Committee a social worker’s affidavit translating his mother’s testimony, an expert report from Somalia and an updated letter from Amnesty International supporting his allegations. The State party notes that these items of evidence were never previously shared with the national authorities in the context of examination of the author’s case. Furthermore, the author did not explain why this evidence had not been shared earlier, particularly the information provided by his mother about his membership of the majority Darod clan, during the danger opinion process. The State party is of the view that this information contradicts the author’s claim during the domestic proceedings that he has no clan affiliation. The State party argues that the Committee cannot evaluate facts or expert evidence that have not been examined by the national authorities. On this point, the State party informs the Committee that the author has the option of requesting a review of his danger opinion on the basis of this new evidence, without being subject to any time limit.

6.4The State party takes the view that, unless the author submits new evidence that might support a request for review of the danger opinion issued against him, his communication must be considered inadmissible on grounds of failure to exhaust domestic remedies, as is clear from the Committee’s decision in Khan v. Canada. In this case, the author failed, at the time of the national authorities’ assessment, to submit a psychological report supporting his claim that he was suffering from post-traumatic stress. The report was submitted directly to the Committee, which noted that it was not too late to reapply for a pre-removal risk assessment or permanent residence on humanitarian grounds on the basis of the new report. Given these circumstances, the Committee had found the author’s communication inadmissible for failure to exhaust domestic remedies. The State party believes that the new evidence adduced by the author, and the possibility of applying for review of the danger opinion that remains open to him, constitute additional grounds for his communication to be found inadmissible for failure to exhaust domestic remedies.

6.5Although the State party is of the view that the Committee is not competent to examine new evidence, in the alternative it has submitted observations on the merits of the claims raised in connection with the new evidence submitted by the author. Firstly, it highlights a contradiction in the new evidence submitted relative to the author’s earlier statements regarding membership of a clan. In the submissions he made during the danger opinion process as well as in his initial communication to the Committee, the author claimed that he was at risk in Somalia because he had no clan affiliation; his new evidence indicates that he is a member of the Darod clan, although it is impossible for him to prove his clan affiliation effectively and the author claims that he would be treated in the same way as a member of a minority clan. The State party also highlights that the author’s mother claims to fear for her son’s life if he is returned to Somalia, as people would be able to find out which clan he belongs to and kill him. The State party notes that the Darod are one of the four majority clans in Somalia and that they are widely represented in the parliament in Mogadishu. Furthermore, the author provided no evidence whatsoever to indicate that members of the Darod clan were in danger in Mogadishu. Secondly, no credible source is provided for the content of the expert report attesting to the author’s membership of a clan that he has difficulty identifying and that would apparently expose him to danger in the event of his return. Thirdly, the letter from Amnesty International, which states that, even if it were to be accepted that the author is a member of the Darod clan, he would be unable to obtain protection due to his lack of family ties in Somalia, was also submitted without providing any authoritative source for the content.

6.6The State party recalls that, in another case, the lack of clan or family support, the author’s lack of knowledge of the Somali language, his Western identity and appearance, and his lack of local knowledge, experience and support networks were not sufficient for the Committee to conclude that his rights under articles 6 (1) and 7 of the Covenant would have been violated if he were returned to Somalia. In view of the foregoing, the State party requests the Committee to declare the authors’ communication inadmissible on grounds of failure to exhaust domestic remedies and insufficient substantiation. In the alternative, it requests the Committee to declare the communication unfounded.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee takes note of the author’s numerous requests not to be deported to Somalia, including a request for administrative deferral of his deportation and an application to the Federal Court for leave and judicial review and a stay of his removal. It notes that, according to the State party, the author has not exhausted the domestic remedies available to him as he failed to submit the additional information requested by the authorities in the context of an application for permanent residence on humanitarian grounds and also failed to apply to the Federal Court, within the time limit set, for leave to apply for judicial review of the negative decision handed down by the Federal Court.

7.4The Committee recalls its jurisprudence to the effect that the author must avail himself of all domestic remedies, insofar as such remedies appear to be effective in the given case and are de facto available to the author. The Committee notes that an application for permanent residence on humanitarian grounds does not protect the author from deportation to Somalia during the examination of his application, and therefore does not constitute an effective remedy. In the particular circumstances of this case, therefore, the Committee considers that an application for leave to appeal to the Federal Court did not constitute an effective remedy. The Committee therefore finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.

7.5The Committee notes that the State party is challenging the admissibility of the communication on the grounds that the author has not sufficiently substantiated his allegations of violations of articles 6 (1), 7, 12 (4), 17 and 23 (1) of the Covenant.

7.6With regard to the author’s claims under articles 6 (1) and 7 of the Covenant, the Committee notes that the State party concluded that the author would not suffer irreparable harm if deported to Somalia, and that, weighing the negatives against the positives, the balance was in favour of the public interest and his return to his country of origin. The Committee also takes note of the author’s claims that he would be exposed to a generalized risk of irreparable harm, owing to the general situation in the country, as well as to a personal risk, owing, in particular, to insecurity, living conditions in Somalia, his Western identity and appearance and the fact that he is unfamiliar with local customs and practices and has no family or clan ties in the country. The Committee also takes note of the State party’s argument that the humanitarian and security situation in Somalia has improved and that the author does not fall into the category of persons at risk as he is not associated with the security forces, the Government or non-governmental organizations, which are the categories most exposed to security risks in Somalia. The Committee underlines the State party’s argument that the large‑scale return of thousands of refugees to Somalia suggests that there would be no real personal risk to the author in the event of his return. The Committee notes that, while the author disagrees with the factual conclusions of the State party’s authorities, he has not demonstrated that they are arbitrary, manifestly erroneous or amount to a denial of justice. Accordingly, the Committee considers that the author’s claims under articles 6 (1) and 7 of the Covenant have not been sufficiently substantiated for purposes of admissibility.

7.7With regard to the author’s allegations that his deportation to Somalia and separation from his family would constitute arbitrary or unlawful interference with his family life, the Committee notes the author’s argument that his deportation would have consequences for his relationship with his mother and his half-siblings. The Committee further observes that the author has not demonstrated in his submissions that his relationship with his mother and his half-siblings is such that his separation from them, as a result of his deportation, would have consequences for him in relation to articles 17 and 23 (1) of the Covenant. Consequently, the Committee considers that the author has not sufficiently substantiated his claims for purposes of admissibility under articles 17 and 23 (1) of the Covenant.

7.8The Committee notes the author’s claim that Canada is his own country within the meaning of article 12 (4) of the Covenant, as he has known this country only since the age of 10 and has no knowledge of Somalia, a country of which he is not a national. The Committee therefore considers that the author’s situation raises issues under article 12 (4) of the Covenant.

7.9Accordingly, the Committee declares the communication admissible insofar as it raises issues under article 12 (4) of the Covenant and proceeds to its consideration on the merits.

Consideration of the merits

8.1The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

8.2With regard to the alleged violation of article 12 (4) of the Covenant, the Committee must first consider whether Canada is the author’s “own country” for the purposes of the provision in question, and then determine whether depriving the author of the right to enter this country would be arbitrary. On the first point, the Committee recalls its general comment No. 27 (1999), on freedom of movement, in which it recognized that the meaning of the phrase “his own country” was broader than the concept of “country of nationality”. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. On this point, the Committee notes that, as recognized by the State party, there are factors other than nationality that can create close and lasting ties between a person and a country,and that these ties, which may include long-term residence, close personal and family ties and the intention to remain in the country, as well as the absence of similar ties elsewhere, may be stronger than those of nationality.

8.3In the present case, the Committee notes the State party’s argument that the author has some knowledge of Somali, that he lived in Somalia until the age of 9 years old, that he has no strong community ties in Canada that would prevent him from leaving the country, and that the Government of Somalia issued him with a temporary travel document attesting to his Somali nationality. The Committee also notes that the author argues that he has lived in Canada with his family since the age of 10 and has no family, social or cultural ties with Somalia, the country to which he is to be deported and of which he is no longer a national. The Committee notes, however, that the author claims never to have had a Somali nationality document, passport or birth certificate and not to meet the conditions necessary for obtaining Somali nationality given that he has not lived in the country for at least seven years, as required under Somali legislation. In the circumstances of the present case, the Committee considers that the author has established that Canada is his own country within the meaning of article 12 (4) of the Covenant, in view of his strong links with Canada, the presence of his family in this country, the language he speaks, the length of his stay in the country over the past 27 years and the absence of any other link with Somalia, since he has never known his father and was rejected by his father’s family.

8.4As to the allegation that the author’s deportation would be arbitrary, the Committee recalls its general comment No. 27 (1999), on freedom of movement, in which it recognized that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. The Committee notes that, in the case in question, the State party’s Immigration and Refugee Protection Act expressly provides that a foreign national’s permanent resident status may be revoked in the event of conviction for a serious offence punishable by at least 2 years’ imprisonment. The Committee notes, however, that, in their assessment of the author’s case, the immigration authorities did not take into account the fact that, in the event of his deportation to Somalia, the author might find himself in a situation where: (a) he did not know the language of the country; (b) he had no family ties and no social networks; and (c) he risked becoming involved in delinquency and violence.

8.5The Committee recalls that a State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country. In this case, the author’s deportation to Somalia would make his return to Canada in effect impossible, given Canadian immigration regulations. The Committee therefore considers that the author’s deportation to Somalia, by preventing his return to his own country, would be disproportionate to the legitimate aim of preventing further offences, and would therefore be arbitrary. The Committee concludes that the author’s deportation, if carried out, would constitute a violation of article 12 (4) of the Covenant.

9.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the author’s deportation to Somalia, if carried out, would violate his rights under article 12 (4) of the Covenant.

10.In accordance with article 2 (3) (a) of the Covenant, the State party is required to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Consequently, the State party is required, inter alia, to provide the author with an effective remedy, including refraining from deporting him to Somalia.

11.In accordance with article 2 (1) of the Covenant, which establishes that States parties undertake to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant, the State party is under an obligation to proceed to a review of the author’s claims, taking into account the State party’s obligations under the Covenant and the Committee’s present Views. The State party is further requested not to deport the author to Somalia until the review of his application has been completed.

12.By becoming a party to the Optional Protocol the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. In this respect, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views.

Annex

[Original: English]

Joint opinion of Committee members Carlos Gómez Martínez and Vasilka Sancin (partially dissenting)

1. While we agree with the majority of the Committee in finding the author’s claims under articles 6 (1), 7, 17 and 23 (1) of the Covenant inadmissible, we regretfully disagree on the admissibility of the author’s claim under article 12 (4), owing to non-exhaustion of domestic remedies. Thus, we are of the opinion that the Committee was precluded from considering the merits of the present communication.

2. Article 2 of the Optional Protocol requires that individuals who submit communications to the Committee must have exhausted all available domestic remedies. Furthermore, article 5 (2) (b) of the Optional Protocol precludes the Committee from considering any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The object of this fundamental rule is to give the respondent State party the first opportunity to correct the alleged harm if it is established that the Covenant has been violated. This requirement applies unless compelling evidence shows that domestic remedies would not offer a reasonable prospect of redress and are de facto unavailable to the author.

3. While the author argued that he had exhausted all available domestic remedies (paras. 2.4, 3.6–3.7 and 5 above), the State party submitted (para. 6.2) that the author had in fact failed to do so, citing three reasons: (a) he had refused to respond to requests for information and interviews following his application for residence in February 2003, which could have opened a path towards Canadian citizenship; (b) he had failed to appeal against the decision to refuse his application and failed to justify his inaction; and (c) he had failed to appeal in a timely manner against the “danger opinion” issued against him. The State party also argued that the author could not, 17 years after having failed to pursue his application for permanent residence, complain to the Committee that he had been arbitrarily deprived of citizenship.

4. The majority of the Committee, in its consideration of the merits (para. 8.2), correctly observed that, with regard to the alleged violation of article 12 (4) of the Covenant, the Committee must first consider whether Canada was the author’s “own country” for the purposes of that provision, and then determine whether depriving the author of the right to enter that country would be arbitrary. For the purposes of deciding on admissibility in respect of these claims under article 12 (4), however, it was also important for the Committee to decide whether the author had exhausted available domestic remedies his efforts to demonstrate that the State party was his “own country”. We are of the opinion, therefore, that this issue should have been decided upon at the admissibility stage.

5. In paragraph 20 of its general comment No. 27 (1999), on freedom of movement, the Committee recognizes that the scope of the phrase “his own country”, used in article 12 (4), is broader than that of the concept of country of nationality. It embraces, at the very least, individuals who, because of their special ties to or their claims in relation to a given country, cannot be considered to be mere aliens. It may also embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of residence. The scope is nevertheless not limitless. In the last sentence of paragraph 20 of the general comment, the Committee clearly notes that States parties should include in their reports information on the rights of permanent residents to return to their country of residence. In our view, the Committee is thus indicating that individuals claiming a certain State as their “own country” should, at a minimum, have at some point acquired the status of permanent resident of that State.

6. As the State party has demonstrated that the author has never acquired the status of permanent resident, that he exercised no due diligence in the procedure that could have led to his being granted permanent residence and opened a path towards Canadian citizenship, and that the decision to reject the author’s application for permanent residence was not appealed before the Federal Court – an allegation that was not contradicted by the author – we are of the opinion that the author failed to exhaust available domestic remedies before bringing to the Committee his claim that the State party is his “own country” and invoking rights under article 12 (4) of the Covenant.

7. It is true that the State party observed that the author had committed numerous offences that would have resulted in the loss of permanent residence status even if it had been granted. However, this assertion by the State party does not render ineffective the remedy of demonstrating that the State party is the author’s “own country”, since, according to the State party, permanent residence status could have been granted, even if it could subsequently have been lost. In any event, this hypothesis does not undermine the main unchallenged fact that no appeal was lodged against the decision to reject the author’s application for permanent residence, which was made after the author’s failure to cooperate and to appear for the required interviews, and the author provided no compelling evidence that domestic remedies would not have offered a reasonable prospect of redress and were de facto unavailable to him.

8. On the basis of the arguments presented above, we would have found the author’s communication inadmissible in its entirety.