8.
On 18 March 1994 the Committee declared
the communication admissible in so far as it might
raise issues under articles 12, paragraph 4, 17, and
23 of the Covenant.
no claim under the Covenant, within the meaning of
article 2 of the Optional Protocol.
7.4 As to article 13, the Committee noted that the
author's deportation was ordered pursuant to a
decision adopted in accordance with the law, and
that the State party had invoked arguments of
protection of society and national security. It was not
apparent that this assessment was reached arbitrarily.
In this respect, the Committee found that the author
had failed to substantiate his claim, for purposes of
admissibility, and that this part of the
communication was inadmissible under article 2 of
the Optional Protocol.
State party's observations on the merits and author's
comments
9.1 By submission of 24 February 1995, the State
party argues that Mr. Stewart has never acquired an
unconditional right to remain in Canada as his
country”. Moreover, his deportation will not operate
as an absolute bar to his reentry to Canada. A
humanitarian review in the context of a future
application to reenter Canada as an immigrant is a
viable administrative procedure that does not entail a
reconsideration of the judicial decision of the
Immigration Appeal Board.
7.5 Concerning the claim under article 12, the
Committee noted the State party's contention that no
substantiation in support of this claim had been
adduced, as well as counsel's contention that article
12, paragraph 4, was applicable to Mr. Stewart's
case. The Committee noted that the determination of
whether article 12, paragraph 4, was applicable to
the author's situation required a careful analysis of
whether Canada could be regarded as the author's
country” within the meaning of article 12, and, if so,
whether the author's deportation to the United
Kingdom would bar him from reentering “his own
country”, and, in the affirmative, whether this would
be done arbitrarily. The Committee considered that
there was no a priori indication that the author's
situation could not be subsumed under article 12,
paragraph 4, and therefore concluded that this issue
should be considered on its merits.
7.6 As to the claims under articles 17 and 23 of
the Covenant, the Committee observed that the issue
whether a State was precluded, by reference to
articles 17 and 23, from exercising a right to deport
an alien otherwise consistent with article 13 of the
Covenant, should be examined on the merits.
9.2 Articles 17 and 23 of the Covenant cannot be
interpreted as being incompatible with a State party's
right to deport an alien, provided that the conditions
of article 13 of the Covenant are observed. Under
Canadian law everyone is protected against arbitrary
or unlawful interference with privacy, family and
home as required by article 17. The State party
submits that when a decision to deport an alien is
taken after a full and fair procedure in accordance
with law and policy, which are not themselves
inconsistent with the Covenant, and in which the
demonstrably important and valid interests of the
State are balanced with the Covenant rights of the
individual, such a decision cannot be found to be
arbitrary. In this context the State party submits that
the conditions established by law on the continued
residency of non-citizens in Canada are reasonable
and objective and the application of the law by
Canadian authorities is consistent with the
provisions of the Covenant, read as a whole.
7.7 The Committee noted the State party's request
for clarifications of the criteria that formed the basis
of the Special Rapporteur's request for interim
protection under rule 86 of the Committee's rules of
procedure, as well as the State party's request that
the Committee withdraw its request under rule 86.
The Committee observed that what may constitute
“irreparable damage” to the victim within the
meaning of rule 86 cannot be determined generally.
The essential criterion is indeed the irreversibility of
the consequences, in the sense of the inability of the
author to secure his rights, should there later be a
finding of a violation of the Covenant on the merits.
The Committee may decide, in any given case, not to
issue a request under rule 86 where it believes that
compensation would be an adequate remedy.
Applying these criteria to deportation cases, the
Committee would require to know that an author
would be able to return, should there be a finding in
his favour on the merits.
9.3 The State party points out that the proposed
deportation of Mr. Stewart is not the result of a
summary decision by Canadian authorities, but
rather of careful deliberation of all factors
concerned, pursuant to full and fair procedures
compatible with article 13 of the Covenant, in which
Mr. Stewart was represented by counsel and
submitted extensive argument in support of his claim
that deportation would unduly interfere with his
privacy and family life. The competent Canadian
tribunals considered Mr. Stewart's interests and
weighed them against the State's interest in
protecting the public. In this context the State party
refers to the Convention relating to the Status of
Refugees, which gives explicit recognition to the
protection of the public against criminals and those
who are security risks; it is submitted that these
considerations are equally relevant in interpreting the
Covenant. Moreover, Canada refers to the
Committee's General Comment No. 15 on “The
54
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