2.3 The author claims that the Government of Canada has violated article 9 (1) of the Covenant by detaining
him arbitrarily from 5 January to 11 March 1982, as the detention hearings never established that he represented a
danger to the public. He alleges a violation of article 6 because the Canadian Government has refused to assure him
formally that he would not be deported to El Salvador, where, the author claims, he would have reasons to fear
attempts on his life. It is further claimed that article 19 (1) (f) of the Immigration Act violates the freedoms of
political opinion, of thought and of expression guaranteed by the Covenant. Finally, the author states that the reviews
of his detention did not proceed in a fair and impartial manner and that therefore he was the victim of a violation of
article 14 (1) of the Covenant.
2.4 With regard to the requirement of the exhaustion of domestic remedies, the author states that he has taken
his case through all court instances, and that his appeals were dismissed by the Immigration Appeal Board, the
Federal Court of Canada (first instance), the Federal Court of Appeal and the Supreme Court of Canada. He claims
that domestic remedies have been exhausted with the decision by the Supreme Court of Canada of 29 January 1987
not to grant him leave to appeal.
3. By decision of 19 October 1987, the Working Group of the Human Rights Committee transmitted the
communication under rule 91 of the provisional rules of procedure to the State party, requesting information and
observations relevant to the question of the admissibility of the communication.
4.1 In its submission under rule 91, dated 12 February 1988, the State party objects to the admissibility of the
communication under Article 3 of the Optional Protocol, ratione materiae, as incompatible with the provisions of the
Covenant, and as an abuse of the right of submission.
4.2 With regard to the facts, the State party points out that the author had already entered Canada in February
1980 and applied for refugee status. Before a decision could be rendered in his case, he left Canada in October 1980.
Investigations showed that "while in Canada he was tasked and funded by a foreign political party to carry out
certain activities which are prohibited under Canadian law. As a cover for his entry to Canada and for his activities
while in Canada, Mr. R. was accredited as a journalist with the . . . news agency . . . which is known to be directed
by a foreign intelligence service". As a result of information made available by the Security Service of the Royal
Canadian Mounted Police, it was determined that Mr. R. was a person described under Section 19 (1) (f) of the
Immigration Act of 1976, which denies admission to Canada to persons for whom there are reasonable grounds to
believe that they will engage in or instigate the subversion by force of any government. Therefore, on 14 November
1980, after the author's departure from Canada, a certificate pursuant to Section 39 of the Immigration Act was
issued, excluding him from re-entry into Canada, and requiring that he be deported if he entered Canada again. Thus,
when on 5 January 1982 he again entered Canada, he was ordered detained pursuant to Section 104 of the
Immigration Act. The State party emphasizes that
upon seeking to re-enter Canada . . . the author was entitled to a hearing of his refugee claim; however, he was never legally
admitted to Canada, pursuant to the rules for admission set out in the Immigration Act, 1976. From 1982 to date, the author has
never been lawfully within the territory of Canada, although he has remained in Canada during this time pending the outcome of
immigration proceedings.
4.3 With respect to an alleged violation of article 6 of the Covenant, the State party indicates that what the
author is complaining of is that Canada might deport him to El Salvador or to another country that would, in turn,
return him to El Salvador, where allegedly his life could be in danger. Thus, what the author is in effect claiming is
that unless he is given permission to stay in Canada, article 6 of the Covenant will be contravened. In this connection
the State party observes that there is no right of asylum in the Covenant, and that a violation of article 6 of the
Covenant cannot result from the denial of asylum. Thus, this aspect of the communication should be declared
inadmissible ratione materiae. Furthermore, the State party adds that the author's fears are unfounded, since the
Government of Canada has publicly stated on several occasions that it would not return him to El Salvador and has
given him the option of selecting a safe third country.
53
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