CCPR/C/116/D/2060/2011
the ground of non-exhaustion of domestic remedies because the author did not avail himself
of the opportunity to seek judicial review before the Federal Court of the negative decision
of the Immigration and Refugee Board concerning his request for refugee protection or of
the negative PRRA decision, both of which were concerned with such risks.11 Given the
author’s failure to exhaust available and effective domestic remedies on two separate
occasions, the Committee should declare his allegation that he would be at risk of
persecution as a failed asylum seeker inadmissible.
4.6
In addition, the State party submits that the author’s allegations under article 6 (1)
and 7 of the Covenant are not substantiated. There was also no evidence to suggest that the
author would be identified and personally targeted in Zimbabwe for any reason whatsoever.
The author relies on a report dated 8 March 2011 in which Human Rights Watch stated that
human rights violations continued to be committed in Zimbabwe against members and
supporters of the Movement for Democratic Change and those critical of the Zimbabwe
African National Union Patriotic Front. However, the report made no reference to failed
asylum seekers returning to Zimbabwe. The State party notes that there is also no evidence
that failed asylum seekers are perceived as opponents of ZANU-PF.
4.7
As to the author’s allegations that antiretroviral medications are unavailable or
unaffordable in Zimbabwe, the State party points out that its authorities based their
decisions on open-source information and medical opinions from doctors practising in
Zimbabwe; that such medications can be purchased at pharmacies in Zimbabwe for about
US$ 30 per month or can be obtained for free at several institutions; that other more recent
reports confirm the availability of those medications in Zimbabwe;12 and that the author had
family in Zimbabwe on whose support he could rely. It also states that since his detention
on 30 May 2011, the author has refused to undergo any blood tests that would have allowed
the State party to ascertain his current CD4 cell count. At the time its observations were
submitted to the Committee, the author was not taking any medications.
4.8
The State party maintains that the author would in all likelihood be able to purchase
antiretroviral medications for most of his life in Zimbabwe and would not be a stranger to
the social/health system; that he was, by his own account, highly educated and a successful
businessman; that his health appears to be good despite his HIV-positive status; and that he
has family in Zimbabwe. All these factors suggest that the author would be in a better
position than the vast majority of Zimbabweans to obtain or create for himself gainful
employment such as to afford private antiretroviral treatment if necessary.
4.9
The State party submits that the author’s claim that he has no family in Zimbabwe
was unsubstantiated and not credible. Firstly, he alleges that his parents are deceased and
that he has only four siblings, none of whom reside in Zimbabwe. However, in the context
of his PRRA application, he stated that he had six siblings, of whom five were still alive.
He also alleges that one of his brothers had written to him from Zimbabwe. In his
humanitarian and compassionate application of November 2007, he indicated that he had
three nephews in Zimbabwe. He also told Canadian immigration officials that his motherin-law and sister-in-law, who live 60 miles north of Harare, would meet him on arrival in
11
12
8
See communications No. 1580/2007, F.M. v. Canada, decision of inadmissibility adopted on 30
October 2008, para. 6.3; No. 1578/2007, Dastgir v. Canada, decision of inadmissibility adopted on 30
October 2008, para. 6.2; and No. 939/2000, Dupuy v. Canada, decision of inadmissibility adopted on
18 March 2005, para. 7.3. The State party also refers to Federal Court of Canada, Ndhlovu v. Canada
(Minister of Citizenship and Immigration), decision on application for judicial review of 30
November 2003.
United Kingdom Home Office, Zimbabwe: County of Origin Information (COI) Report, 25 March
2011, para. 25.07.