CCPR/C/106/D/1912/2009
2007. The Committee notes the author’s argument that the position of the State party is to
reject evidence that relates to facts predating the first PRRA application procedure, which is
the case with the two documents mentioned; and that those documents only corroborate the
author’s allegations previously rejected for lack of credibility. The Committee further notes
the author’s contention that he filed a new H&C application which was rejected; and that
neither a renewed PRRA application nor a renewed H&C application would protect the
author against deportation from Canada, therefore not providing an effective remedy to the
author.
6.4
The Committee recalls its jurisprudence to the effect that authors must avail
themselves of all judicial 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. 12 The Committee notes that, throughout the
proceedings, the author has claimed to have been tortured. In the light of the information
available to it, the Committee considers that none of the two avenues mentioned by the
State party (PPRA application and H&C application) in the present circumstances would
have the effect of staying or preventing the author’s deportation to Sri Lanka. The
Committee further considers that given the current legislation in the State party and the
nature of the documents concerned, it is unlikely that they would have changed the outcome
of the proceedings. The Committee therefore considers that it is not precluded from
considering the author’s claims pursuant to article 5, paragraph 2 (b), of the Protocol.
6.5 The Committee notes the State party’s challenge to the admissibility of the
communication on the ground of failure to substantiate the author’s claims under articles 6,
paragraph 1, 7 and 9, paragraph 1, of the Covenant. As far as article 6 is concerned, the
Committee notes that the information submitted to it does not provide sufficient grounds to
believe that the author’s expulsion to Sri Lanka would expose him to a real risk of a
violation of his right to life. The author’s contentions in this respect are general allegations
mentioning the risk of arbitrary arrest and detention, which could ultimately lead to his
death, but without reference to any particular circumstances suggesting that his life would
be in danger. In these circumstances, the Committee considers that the author has not
sufficiently substantiated his claims under article 6 of the Covenant. The Committee
therefore declares this part of the communication inadmissible pursuant to article 2 of the
Optional Protocol.
6.6
With regard to the author’s claims under article 9, paragraph 1, the Committee notes
the State party’s argument that this provision has no extraterritorial application and does not
prohibit a State from deporting a foreign national to a country where he alleges he faces a
risk of arbitrary arrest or detention. The Committee takes note of the author’s allegations
that the risk of his arbitrary detention in Sri Lanka brings with it the risk of torture or cruel
and unusual punishment while in detention. The Committee therefore concludes that the
risk of a violation of article 9, paragraph 1, cannot be dissociated from the real risk of a
violation of article 7 of the Covenant.
6.7
As for the author’s claims under article 7 of the Covenant, the Committee notes that
he has explained the reasons why he feared to be returned to Sri Lanka, based on the arrests
and treatment he allegedly suffered both in the hands of the authorities and the LTTE. The
Committee also notes that the author has provided documentary evidence in support of such
claims which are serious enough to be considered on the merits. The Committee
12
See communication No. 1959/2010, Jama Warsame v. Canada, Views adopted on 21 July 2011,
para. 7.4; communication No. 1003/2001, P.L. v. Germany, Decision on admissibility of 22 October
2003, para. 6.5; and communication No. 433/1990, A.P.A. v. Spain, Decision on admissibility of 25
March 1994, para. 6.2.
13