CCPR/C/142/D/3618/2019 · Canada

The author of the communication is M.D., a national of Sri Lanka, born on 4 June 1987. He claims that the State party would violate his rights under articles 6 (1) and 7 of the Covenant if it removed him to Sri Lanka, where he fears being subjected to inhuman and degrading treatment due to his perceived links with the Liberation Tigers of Tamil Eelam. The Optional Protocol entered into force for the State party on 19 May 1976. The author is represented by counsel.

On 28 May 2019, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party to refrain from removing the author to his country of origin while his communication was being considered. On 8 July 2021, the State party submitted a request to lift interim measures since there was no real and personal risk of irreparable harm for the author if returned to Sri Lanka.³

3. The State party submitted that, given the author’s profile, he was not in the category of persons who would be at significant risk of being monitored or otherwise targeted by the Sri Lankan authorities upon his return. ↩

The author is a Tamil, born in Jaffna, Sri Lanka, on 4 June 1987. He and his family were arrested, detained, questioned and beaten by the Sri Lankan authorities several times.

On 24 June 2002, a pro-government group⁴ abducted the author’s father, K.D. The author’s father was tortured and spent three weeks in the hospital after his release. In late July 2002, the author and his father were arrested by the police and detained and questioned for two days because the police believed that they had a link with the Liberation Tigers of Tamil Eelam. In May 2006, the author was again arrested and detained by the police for two weeks, when the police questioned him to get information regarding other Liberation Tigers of Tamil Eelam members. He was released after his father paid a bribe.

4. No detailed information on this group has been provided by the author. ↩

In October 2006, the author was arrested again and detained by the police for two weeks before his uncle paid for his release. The author was again detained by the police in November 2006 for a week but was released on the condition that he report when required. In June 2007, the author was again arrested and detained for a week after a number of Liberation Tigers of Tamil Eelam intelligence members were found in his neighbourhood. He was questioned and kicked twice, as he was suspected of having a connection to the Liberation Tigers of Tamil Eelam, but was released after his father paid a bribe. In July 2007, the author was again detained by the police for a week, threatened and severely tortured.⁵ In October 2008, the author’s entire family, including his elderly grandparents, was arrested by the police after a bombing by the Liberation Tigers of Tamil Eelam in the suburbs of Colombo, where the police alleged that they had found the author’s national identification card.⁶ The police accused the author of helping the Liberation Tigers of Tamil Eelam and detained him for nine months.⁷ During that time, the police kicked and punched the author, beat him with sticks and poured hot water over his body. He was released in June 2009, after his father paid a bribe of 500,000 rupees.⁸ In July 2009, the members of the pro-Government Tamil Karuna faction abducted the author from his home, as he was accused of helping the Liberation Tigers of Tamil Eelam. After six days of detention, he managed to escape. After this incident, he fled Sri Lanka. The author provides photographs of the injuries on his feet and legs inflicted by torture.⁹

5. No further information about the alleged acts of torture have been provided. ↩
6. The author alleged, however, that he was in possession of his identification card when he was arrested. ↩
7. His father was detained for 36 days, while the other family members were released the day after their arrest. Evidence was submitted to prove the length of the detention period of the author’s father: the Magistrate Court document ordering the release of his father in November 2018 and a detention attestation by the International Committee of the Red Cross (annexed to the complaint). ↩
8. Equivalent to $7,200. ↩
9. The photographs prove that signs of torture are still visible. ↩

Upon his arrival in Canada on 5 April 2012, the author applied for refugee protection. His application for asylum before the Refugee Protection Division of the Immigration and Refugee Board of Canada was rejected on 21 September 2015. The Board found that, although the author’s testimony was consistent regarding his arrests, repeated detention and torture, he was not personally targeted but was arrested during sweep arrests of Tamils in general. It also found that there was no evidence, at that time, that he had participated in any pro-Liberation Tigers of Tamil Eelam activity while in Canada. The author filed an application for leave to initiate judicial review at the Federal Court against the Board’s decision, which was denied on 12 July 2016, with no reason provided. Furthermore, the author’s application for a pre-removal risk assessment was refused on 13 August 2018, as the concerned officers found that the author could not establish that he would personally be at risk if returned to Sri Lanka. The application for leave to appeal the negative pre-removal risk assessment decision to the Federal Court of Canada was dismissed on 17 February 2019 and judicial review was denied on 1 March 2019, with no reason provided.

After a series of bomb explosions in Sri Lanka in April 2019, the brother and father of the author were arrested by the Criminal Investigation Department, without arrest warrants, under the Prevention of Terrorism Act on suspicion of a link with the Liberation Tigers of Tamil Eelam. The author’s father was released, as he was elderly, but his brother is still being detained. In May 2019, the author publicly participated in Tamil Genocide Remembrance Day in Canada.

The author claims that he would face persecution if returned to Sri Lanka for several reasons: as a Tamil man from Northern Province, Sri Lanka, who bears torture scars; his past detentions on suspicion of having links to the Liberation Tigers of Tamil Eelam; his unsuccessful claims for refugee protection abroad; and his participation in the Tamil Genocide Remembrance Day march in Canada in May 2019. Given the considerable risk of persecution, including the risk to his life, the author claims that his removal would amount to a violation of articles 6 (1) and 7 of the Covenant. In that regard, in his communication to the Committee, he has alleged new evidence of risk, which he says was not assessed by the domestic authorities.

The author asserts that the new evidence, which was not available at the time of either the Immigration and Refugee Board of Canada or the Federal Court assessment, supports his initial claims of risk. It consists of a letter from a Sri Lankan lawyer and a letter from a member of Parliament of Sri Lanka confirming that the police arrested his father and brother and that his brother was still detained for possible links to the Liberation Tigers of Tamil Eelam. It is also stated in the letters that, while no specific arrest warrant had been issued for the author, he was wanted for interrogation for possible links to or affiliation with the Liberation Tigers of Tamil Eelam. In addition, the author submits photographs of his participation in Tamil Genocide Remembrance Day in Canada in May 2019, which support his alleged fears of possible future persecution in Sri Lanka.

Furthermore, the author asserts that Sri Lanka is dangerous for a young Tamil man from Northern Province, Sri Lanka and, in particular, for him, as he was detained and tortured in the past for perceived links with the Liberation Tigers of Tamil Eelam, leaving severe torture scars on his body. In addition, the author’s family members are perceived by the security forces as having links to the Liberation Tigers of Tamil Eelam. The author further refers to a number of reports from non-governmental organizations and governmental agencies to support the allegations set out above.¹⁰ The reports indicate that, upon their return to Sri Lanka, Tamil asylum-seekers are regularly checked and interrogated at the airport by the police or the Criminal Investigation Department, which often refer them to the State Intelligence Service and the Terrorism Investigation Division. The reports indicate that the situation of surveillance and torture of Tamils has been getting worse, including since the new Government of Sri Lanka took office. They also indicate that the risk would be higher for those who, like the author, were detained and tortured before their departure. The author also submits that the bombings of April 2019 in Sri Lanka, which killed over 250 people, raised the tension between the Government and the Tamils in Sri Lanka.¹¹

10. They include a report published in 2011 by Freedom from Torture; a report published in August 2016 by the United Kingdom of Great Britain and Northern Ireland, available at https://www.ecoi.net/en/file/local/1116101/1226_1470833715_sri-lanka-tamil-separatism-v3-0.pdf; a report published in 2015 by the United Kingdom entitled “Sri Lanka – country of concern”, available at https://www.gov.uk/government/publications/sri-lanka-country-of-concern--2/sri-lanka-country-of-concern; comments issued in February 2015 by the Immigration and Refugee Board of Canada, available at http://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=455716&pls=1; a report published in 2014 by Amnesty International entitled Ensuring Justice: Protecting Human Rights for Sri Lanka’s Future, available at https://www.amnesty.org/en/documents/asa37/011/2014/en; a report published in 2016 by Human Rights Watch, available at http://reliefweb.int/report/sri-lanka/sri-lanka-events-2015; and a report on Sri Lanka published in January 2016 by the International Truth and Justice Project. ↩
11. See https://www.aljazeera.com/news/2019/04/sri-lanka-bombings-latest-updates-190421092621543.html. ↩

The author contends that he has exhausted all available domestic remedies. In addition, the matter has not been submitted for examination under any other procedure of international investigation or settlement.

On 5 November 2019, the State party requested a suspension of consideration of the communication until the domestic authorities had had an opportunity to assess and decide on the author’s alleged new risks. The State party added that, as of 16 February, the author would be eligible to apply for a second pre-removal risk assessment.

In a submission dated 28 February 2020, the author submits that no effective remedies are available to him. First, the removal order has not been stayed and a stay of removal is limited to extraordinary circumstances. Second, since the author was not notified, he could not apply for a second pre-removal risk assessment, which, in any case, could not result in a stay of removal order. Only a first pre-removal risk assessment, which was rejected in the author’s case, can stay a deportation. Third, the application for judicial review at the Federal Court of Canada of the refusal of the second pre-removal risk assessment would not stay the deportation of the author either. In conclusion, and contrary to the State party’s contention, there is no effective remedy available that could stay the author’s deportation. Finally, the author requests that the interim measures stay in place until the Committee takes its decision on the merits.

On 12 July 2021, the State party submitted its observations on admissibility and the merits. It indicates that the author’s removal was temporarily deferred and that he remains in Canada.

It argues that the author’s communication is inadmissible as he has failed to exhaust all available domestic remedies and has not substantiated his allegations of risk.

The author failed to exhaust effective domestic remedies by failing to wait for a decision on his request for an administrative deferral of removal of 27 May 2019; failing to make an application for permanent residence on the basis of humanitarian and compassionate grounds,¹² to which he had been entitled since 12 July 2017; and failing to seek a regulatory stay of removal. In that context, the author has not raised any objections to the humanitarian and compassionate grounds process and has not argued that it would be ineffective or unfair in his case. The author also failed to apply for a second pre-removal risk assessment, despite his claim of new evidence of risk and despite the State party’s request to the Committee for a suspension of consideration of his communication to allow the author to apply for the second pre-removal risk assessment.

12. The author became eligible to apply for permanent residence on humanitarian and compassionate grounds on 12 July 2017, which the State party perceives as an effective remedy that has been available to the author. The State party also referred to the Committee’s jurisprudence in Dastgir v. Canada (CCPR/C/94/D/1578/2007), para. 6.2; and Khan v. Canada (CCPR/C/87/D/1302/2004), para. 5.5. In that regard, the State party regretted the practice of the Committee and of the Committee against Torture in some recent cases, in which the committees viewed the humanitarian and compassionate grounds process as a remedy that did not need to be exhausted for the purposes of admissibility. ↩

Overall, the author had access to multiple domestic proceedings, which he did not pursue. His refugee claim was rejected by the Refugee Protection Division, and the Federal Court did not interfere with that decision. By a decision of 13 August 2018, the pre-removal risk assessment officer rejected the author’s application, which relied on the same facts as alleged before the Refugee Protection Division. On 17 February 2019, the Federal Court dismissed the author’s application for leave to appeal. As a result of the negative pre-removal risk assessment decision, the author’s conditional removal order became enforceable under domestic law. On 27 May 2019, the author submitted a request for an administrative deferral of removal to the Canada Border Services Agency. The author submitted the request shortly after he submitted his communication to the Committee, however. The Committee granted the author’s request for interim measures before the Agency had had time to consider his request for a deferral of his removal. The State party also reiterates that the author failed to file a second pre-removal risk assessment application, despite his claims of new evidence.

As to the author’s claims of new evidence of risk, which included the letters of support from his Sri Lankan lawyer and of a member of Parliament from the Jaffna district and photographs of torture injuries, such evidence should have been subjected to domestic review to give the State party’s decision makers the opportunity to examine it first. In particular, the author could have submitted requests for an administrative deferral of his removal and a second pre-removal risk assessment application, both of which are effective remedies in the author’s circumstances.

In addition, the author has not substantiated, even on a prima facie basis, his allegations that he faces a real and personal risk to his life or of torture or cruel, inhuman or degrading treatment or punishment. Therefore, his claims under articles 6 (1) and 7 of the Covenant should be considered as manifestly unfounded. The State party, inter alia, argued that the author lacked credibility, as some of the inaccurate or erroneous statements in his communication as regards previous persecution might be the facts presented in a different communication to the Committee by I.S., dated 1 March 2019.¹³ The author of the present case has not substantiated his account of past experiences of persecution and serious harm in Sri Lanka. The author’s new evidence does not substantiate his allegations of risk, and his allegations about current country conditions are not substantiated either. The claims with regard to torture scars, past detentions due to the links to the Liberation Tigers of Tamil Eelam, the fact of being a failed asylum-seeker or attendance at the Tamil Genocide Remembrance Day event in Canada do not support his fears of risk. Finally, the State party argues that the Committee is not a tribunal of fourth instance.

13. I.S. v. Canada (CCPR/C/137/D/3315/2019). The same counsel has represented both authors. ↩

Alternatively, the State party submits that the communication should be considered without merit. The author’s claim that he fears persecution by the Sri Lankan authorities is based largely on alleged encounters with the Sri Lankan police, which would have taken place between 2002 and 2009, at a time when Sri Lanka was in a civil war. At most, the author was targeted personally by the Sri Lankan authorities on only two occasions; on the remaining five occasions, he was arrested and detained as part of general round-ups of Tamils. The author was never charged with any criminal or terrorism-related offences and was always released from detention. In addition, he was able to leave Sri Lanka using his own passport, which indicates that the Sri Lankan authorities had no serious concerns regarding any potential links to the Liberation Tigers of Tamil Eelam. Furthermore, the author’s claims that he would face persecution if returned to Sri Lanka because of his profile and personal characteristics are not supported by objective reports on the current country conditions. The State party reiterates that the author has not presented sufficient credible evidence that demonstrates that he faces a real and personal risk of death, torture or cruel, inhuman or degrading treatment of punishment if returned to Sri Lanka.

The State party requests that the Committee consider the admissibility and merits of the communication at its earliest convenience.

On 10 July 2023, the author submitted his comments on the State party’s observations. He asserts, contrary to the State party’s assessment, that the country conditions have worsened for perceived members of the Liberation Tigers of Tamil Eelam such as the author, who was detained by the Sri Lankan authorities in the past for suspected links to the organization. His detention was not put into doubt by the Refugee Protection Division of the Immigration and Refugee Board nor any court of the State party.

The last procedure before the State party’s authorities dates to 2019. Although the author is now under a spousal sponsorship,¹⁴ it has no effect in terms of on stopping his deportation to Sri Lanka. The only reason that the author has not been removed is that the State party respected the Committee’s request for interim measures to halt the author’s removal. The author therefore requested the Committee to maintain the interim measures while his case was being examined by the Committee.

14. A form of temporary residence pending application for permanent residence. ↩

Referring to the background reports, the author submits that some Tamils with imputed links to the Liberation Tigers of Tamil Eelam, including those who fought for the organization or were part of its civilian administration, continue to report being subjected to police monitoring and harassment.¹⁵ As for returnees, in a report¹⁶ of the Immigration and Refugee Board on Sri Lanka, it is stated that a fact-finding mission report of the Home Office of the United Kingdom of Great Britain and Northern Ireland indicates that, according to a peacebuilding and human rights organization, anyone returning from abroad after failing to obtain asylum would be questioned harshly, but that, without providing further detail, the situation had improved for returnees, as the Government of Sri Lanka knows that other countries are monitoring the situation.

15. See Immigration and Refugee Board of Canada, “Sri Lanka: treatment of Tamil citizens, including suspected members or supporters of the Liberation Tigers of Tamil Eelam (LTTE); treatment of non-Tamil supporters of the LTTE by the Government (2017–August 2020)”, 17 August 2020, available at https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=458148&pls=1. ↩
16. See https://www.refworld.org/docid/5aa92d344.html. ↩

The fact that the Sri Lankan authorities have continued to approach the author’s family to determine his whereabouts and to verify if or when he would return and the continued harassment of his family members, as attested by the affidavit that he submitted to the Committee, are supported by the documentary evidence, which gives credence to the author’s allegations. A 2022 report by the Home Office on the general treatment of Tamils also confirms the above and corroborates that the situation for Tamils, especially those who are perceived to have or have had any links to the Liberation Tigers of Tamil Eelam, has worsened.¹⁷

17. https://www.gov.uk/government/publications/sri-lanka-country-policy-and-information-notes/country-policy-and-information-note-tamil-separatism-sri-lanka-august-2022-accessible-version#exit_return. ↩

The author has also claims that since the Sinhala nationalist Government took power in November 2019 it has adopted discriminatory policies and practices against the country’s Muslim and Tamil minorities.¹⁸ He claims that Tamils and Muslims are increasingly being marginalized and excluded from the national vision and government policy, while divisive and discriminatory rhetoric by State officials at the highest levels risks generating further polarization and violence.¹⁹ Throughout the country, especially in the north and east, Tamils have reported that the members of their community have been regularly monitored and harassed by the security forces.²⁰ The author also makes reference to the disproportionately high number of military checkpoints in Northern Province and complaints of discriminatory treatment or harassment during security checks.²¹ Finally, the Prevention of Terrorism Act , enacted in 1979, remains legally in force and contains special provisions on detention and the admissibility of confessions. The Act was also recently used against Tamils.²² Asylumseekers are viewed as having undermined or shamed the country, and returnees who have sought asylum are viewed as traitors. There is resentment and antipathy towards both Tamil refugees and Tamil asylum-seekers as the Government believes that they have aired negative views about Sri Lanka and its Government abroad. Upon return to Sri Lanka, Tamils face more scrutiny, especially those who are failed asylum-seekers.²³

18. See Human Rights Watch, World Report 2021 (2021). ↩
19. A/HRC/46/20, para. 53. ↩
20. See United States of America Department of State, 2021 Country Reports on Human Rights Practices: Sri Lanka. ↩
21. A/HRC/49/9, para. 16. ↩
22. See Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report Sri Lanka (2021). ↩
23. See Federal Court of Canada, Sathanantharajan v. Canada (Citizenship and Immigration), 2020 FC 512, decision of 14 April 2020, para. 34. See also https://www.irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=458595&pls=1. ↩

The author argues that his communication should be considered on the merits due to the evidence in support of his fears of the personal and real risks of persecution or other illtreatment if removed to Sri Lanka. Such evidence runs counter to the State party’s request to lift interim measures in the present case. The author recalls that the new evidence, which corroborates the risk to the author’s life and of detention and torture by the Sri Lankan authorities, was never assessed by the State party’s asylum authorities nor any domestic court. Therefore, the Committee’s request to halt the author’s deportation is the only remedy left to the author until a decision on the merits is rendered.

In attachment to his comments, the author has submitted a copy of his application for permanent residence made under the Spouse or Common-Law Partner in Canada Class, dated 29 June 2023, which was being processed at the time. After the initial screening, the authorities determined that the author met the eligibility requirements to apply for permanent residence as a member of the Spouse or Common-Law Partner in Canada Class. A final decision would not be made, however, until all remaining requirements for becoming a permanent resident had been met, including medical and security checks for the author and his family members.

The author also provided to the Committee a letter, dated 3 July 2023, in which he attests to the release of his brother from detention in 2021 against the payment of a bribe to the Sri Lankan authorities and the fact that his brother’s whereabouts remain unknown,²⁴ that the police continue to come to the family house asking about the author and his brother, as indicated by the author’s father, that the author’s father is afraid to provide an updated affidavit and that the author still fears returning to Sri Lanka, where he would be arrested and tortured by the Sri Lankan authorities, who act with complete impunity.

24. The author suspects that his brother might have been killed. ↩

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the author’s statement that he has exhausted all available domestic remedies. The author’s application for asylum before the Immigration and Refugee Board was rejected on 21 September 2015 and his application for leave to request judicial review by the Federal Court against the Board’s decision was denied on 12 July 2016. The Committee also observes that the author’s application for a pre-removal risk assessment was rejected on 13 August 2018 and that his application for leave to appeal the negative preremoval risk assessment decision to the Federal Court was rejected on 17 February 2019. The Committee nonetheless notes the State party’s objection that the author has not exhausted all available domestic remedies, as he has been eligible for a second pre-removal risk assessment since 16 February 2020, in particular as he alleged new evidence of risk if removed to Sri Lanka, which has not been considered by the domestic authorities.

The Committee recalls its jurisprudence to the effect that authors must avail themselves of all domestic remedies in order to fulfil the requirements of article 5 (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.²⁵

25. H.S. et al. v. Canada (CCPR/C/125/D/2948/2017), para. 6.3. See also Timmer v. Netherlands (CCPR/C/111/D/2097/2011), para. 6.3. ↩

The Committee observes the author’s submission of 28 February 2020 that there are no effective remedies available to him. He argues that the removal order has not been stayed and that a stay of removal is limited to extraordinary circumstances, that since he was not notified, he could not apply for a second pre-removal risk assessment, which does not result in a stay of removal order anyway, as only the first pre-removal risk assessment, which was rejected, stays a deportation, and that the application for a judicial review by the Federal Court of Canada of the refusal of a second pre-removal risk assessment would not stay the deportation of the author either.

The Committee also observes the State party’s additional arguments that the author failed to exhaust available domestic remedies, as he submitted a request for an administrative deferral of his removal on 27 May 2019, after the submission of the present communication, and he failed to await a decision thereon. The State party adds that the author did not apply for permanent residence on the basis of humanitarian and compassionate grounds²⁶ and the author did not seek a regulatory stay of his removal. The State party further argues that the author did not raise any objections to the humanitarian and compassionate process and did not allege that it would be ineffective or unfair. The State party reiterates that the author also failed to apply for a second pre-removal risk assessment, despite his claim of new evidence of risk and the State party’s subsequent request to the Committee for a suspension of consideration of his communication to allow the author to apply for the second pre-removal risk assessment. Overall, the State party argues that the author had access to multiple domestic proceedings and that he resorted twice to the Federal Court of Canada. The Committee notes, however, that the author has not submitted further comments to dispel the State party’s arguments as to the additional remedies available to him. In the light of the above, the Committee considers that the timely application for administrative deferral of the author’s removal, a request for a regulatory stay of removal and an application for a second pre-removal risk assessment, given the claims of new evidence of risk, could have represented effective remedies available to the author had he decided to avail himself of them in order to stay his removal. In that connection, the Committee recalls its jurisprudence that doubts about the effectiveness of domestic remedies do not absolve authors from exhausting such remedies.²⁷

26. M.B. v. Canada (CCPR/C/128/D/2957/2017), para. 7.3. ↩
27. Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.6. ↩

In addition, the Committee notes the State party’s argument that the new evidence submitted by the author to the Committee in support of the present communication has never been presented to the national asylum authorities or the courts, and that the State party did not have a chance to consider the alleged new evidence first. The Committee recalls its jurisprudence, according to which the requirement of exhaustion of domestic remedies, which allows the State party to remedy an alleged violation before the same issue is raised before the Committee, obliges authors to raise the substance of the issues submitted to the Committee before domestic courts.²⁸ Therefore, the Committee considers that, in failing to raise his claims based on the alleged new evidence before the national asylum authorities or courts, the author has failed to exhaust domestic remedies, and declares these claims inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.

28. Tarlue v. Canada (CCPR/C/95/D/1551/2007), para. 7.5; and S.D.P.T., Y.F.R.T. and P.T. v. Canada (CCPR/C/125/D/2034/2011), para. 11.4. ↩

In the light of the above finding, the Committee will not consider separately the other grounds of inadmissibility raised by the State party.²⁹

29. S.J. v. Canada (CCPR/C/127/D/2732/2016), para. 6.4. ↩

The Committee therefore decides: (a) That the communication is inadmissible under article 5 (2) (b) of the Optional Protocol;