Further State party’s admissibility observations
to India while his communication is under
consideration by the Committee.
6.1 In a further submission dated 9 October 1998,
the State party contends that upon receiving a
decision like that of the adjudicator in the instant
case, a refugee claimant represented by counsel
would not have assumed that he could proceed with
his refugee claim. The adjudicator determined that
the author was a person who had been convicted
outside of Canada of an offence that if committed in
Canada would constitute an offence punishable by a
maximum term of imprisonment of 10 years or more
and was also a person for whom there were
reasonable grounds to believe had engaged in
terrorism. A reasonable person represented by
counsel receiving such a determination would have
anticipated that action would be taken to have the
individual excluded from the refugee determination
process. Indeed, such a determination would suggest
that the claimant might be excluded from the
definition of a Convention refugee in section F of
article 1 of the Convention relating to the Status of
Refugees, which was incorporated by reference into
the Canadian Immigration Act.
8.2 In its response, the State party indicates that
an interim measures request is a recommendation to
a State to take certain measures, not an order.
Support for this proposition may be found not only
in the word employed (“request”) in rule 108,
paragraph 9, but also in the European Court of
Human Rights judgement in Cruz Varas and Others
v. Sweden. The Court stated the following with
respect to the legal status of an interim measures
request: “Firstly, it must be observed that rule 36
[regarding interim measures] has only the status of a
rule of procedure drawn up by the Commission ... In
the absence of a provision in the Convention for
interim measures an indication given under rule 36
cannot be considered to give rise to a binding
obligation on Contracting Parties.”
8.3 Pursuant to rule 108, paragraph 9, an interim
measures request may be issued in order to avoid
“irreparable damage” to an author. The State party
submits that the examination of possible irreparable
harm should be a rigorous one, particularly when the
individual concerned was found to represent a
danger to the public or, as in the author’s case,
whose continued presence in the State was
determined to be contrary to the public interest. On
the basis of the documentary evidence submitted by
the author as well as their own evidence regarding
the author’s risk upon removal to India, the
authorities concluded that the risk was minimal.
Moreover, a judge of the Federal Court Trial
Division determined that the risk to the author was
not sufficient to justify a stay of his removal.
6.2 Moreover, the author had been advised,
subsequent to the first inquiry held, that CIC
intended to seek the Minister’s opinion that the
author constituted a danger to the public, the
consequence upon issuance of such opinion being
that he would be excluded from the refugee
determination process. The author sought judicial
review of this earlier determination and was
therefore aware of the potential consequences of an
adjudicator’s finding that he was inadmissible.
Counsel’s comments
8.4 The Government of Canada first became
aware that the petitioner had submitted a
communication, including a request for interim
measures, when the author’s counsel alluded to the
Committee’s granting of the request during a
discussion with a CIC official on 18 December 1997,
three months after the Committee had received the
author’s communication and request for interim
measures. The record before the Committee reveals
that the interim measures request was issued, after
several appeals by the author’s counsel to the
Committee, a few days before his scheduled removal.
The Government of Canada was not aware of these
appeals nor was it given the opportunity to comment
on these ex parte communications with the
Committee.
7.
Counsel argues that the adjudicator’s finding
was very specific (i.e., that the author had been
convicted of an offence and that there were
reasonable grounds to believe he had engaged in acts
of terrorism). The scope for judicial review of such a
finding is limited to whether the adjudicator made an
error in law or whether his findings of fact were
perverse, capricious or patently unreasonable.
Whether or not the author agreed with the decision,
it was not possible to attack it on any of these
grounds based on the evidence presented. Counsel’s
duty is to determine whether it is in the client’s best
interest to pursue an appeal when there is little merit
in doing so. Counsel would hesitate to launch a
frivolous application before the courts simply to
delay further proceedings.
8.5 In summary, irrespective of their legal status,
interim measures requests received from the
Committee are given serious consideration by the
State party. However, the State party determined that
the present case was not an appropriate one for a
stay to be granted in light of the above-mentioned
factors and in particular: (a) the prima facie absence
State party’s comments on the failure to observe the
Committee’s interim measures request
8.1 On 24 June 1998, the Committee invited the
State party to submit written comments on the
failure to observe the request not to expel the author
55
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents