CCPR/C/112/D/2053/2011
5.2
With respect to the State party’s contention that he has failed to substantiate his
claims, the author reiterates that there are strong reasons and evidence supporting his claims
that he would be exposed to a real risk of irreparable harm as a necessary and foreseeable
consequence of his return to Senegal, the absence of any safe area in which he could
relocate in Senegal, as (a) his extended family will find him anywhere in the country;
(b) the Mourides Brotherhood, which is active throughout Senegal, will find him and kill
him; and (c) the police will not protect him because they consider the issue to be a family
matter and will not become involved. The police also told the author that the Mourides
Brotherhood was too powerful. Moreover, around 95 per cent of the police officers in
Senegal are Muslim, and most of them are members of the Mourides Brotherhood.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Human Rights
Committee must, in accordance with rule 93 of its rules of procedure, decide whether the
communication is admissible under the Optional Protocol to the Covenant.
6.2
The Committee has ascertained, as required under article 5, paragraph 2 (a), of the
Optional Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
6.3
The Committee notes the State party’s argument that the author has failed to exhaust
domestic remedies, as he did not appeal the decision of the Refugee Review Tribunal
before the Federal Magistrates Court. The Committee recalls its jurisprudence to the effect
that authors must avail themselves of all domestic remedies in order to fulfil the
requirement of article 5, paragraph 2 (b), of the Optional Protocol, insofar as such remedies
appear to be effective in the given case and are de facto available to the author.9 In the
present case, the Committee notes the author’s contention that, as there was no
jurisdictional error in the Refugee Review Tribunal’s decision of 28 October 2009, no
judicial review before the Federal Magistrates Court was available to him under the existing
provisions of the Migration Act, as interpreted by relevant case law. The Committee notes
that the author’s statement has not been challenged by the State party, and accordingly
considers that it is not precluded from considering the communication under article 5,
paragraph 2 (b), of the Optional Protocol.
6.4
The Committee notes the State party’s challenge to the admissibility of the
communication pursuant to article 2 of the Optional Protocol on the ground that the author
has failed to substantiate his claims under articles 6 and 7 of the Covenant. However, the
Committee finds that, for the purposes of admissibility, the author has adequately explained
the reasons for which he fears that a forcible return to Senegal would result in a risk of
treatment incompatible with articles 6 and 7 of the Covenant, relying on his past experience
whereby, as a Christian convert, he was assaulted on two occasions, and on his claim that
he failed to obtain the protection of the police, which he had sought. The Committee
therefore finds the author’s claims under articles 6 and 7 admissible under article 2 of the
Optional Protocol.
6.5
With respect to the State party’s argument that article 18 of the Covenant lacks
extraterritorial application, the Committee is of the view that the author’s allegations under
9
See, inter alia, communications No. 1959/2010, Warsame v. Canada, Views adopted on 21 July 2011,
para. 7.4, and No. 1003/2001, P.L. v. Germany, inadmissibility decision adopted on 22 October 2003,
para. 6.5.
9