PROJECT

HUMAN RIGHTS

CASE ANALYSIS: A.B. V CANADA

[CCPR/C/117/D/2387/2014]

COURSE TEACHER-
DR. ANANYA CHAKRABARTY
(ASSISTANT PROFESSOR OF LAW)
NATIONAL LAW UNIVERSITY ODISHA

SUBMITTED BY-
SHRADDHA SINGH (14/BBA/062)
SEMESTER- X (5th YEAR)
 HUMAN RIGHTS

TABLE OF CONTENT

I. Brief overview of the legal right concerned ................................................................................ 3

A. Principle of non-refoulement ................................................................................................. 4

II. Summary of the decision ............................................................................................................ 5

A. Facts ....................................................................................................................................... 5

B. Issues Raised .......................................................................................................................... 5

C. Tribunal’s Consideration ........................................................................................................ 6

1.1. Article 6(1) and 7 ............................................................................................................. 6

1.2. Articles 17 and 23(1) ....................................................................................................... 6

D. Dissenting Opinion of Víctor Manuel Rodríguez-Rescia ...................................................... 8

E. Dissenting Opinion of Fabián Omar Salvioli ......................................................................... 8

F. Analysis .................................................................................................................................. 9

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I. BRIEF OVERVIEW OF THE LEGAL RIGHT CONCERNED

The deportation of non-citizens has been one of the most controversial disputes on the
international arena. The case at hand, A.B. v. Canada, concerns a deportation order granted to a
Somali refugee in Canada by the Immigration and Refugee Board of Canada. Based on the
representations made by the author of the case, the detention order remains incompatible with
various substantial rights guaranteed under the International Covenant on Civil and Political
Rights and the Optional Protocol, including the right to an effective remedy, right to life,
freedom from risk of torture or cruel, inhuman or degrading treatment, and right to privacy,
family and reputation categorized under Articles 6(1), 7, 17 and 23(1) read along with Article
2(3).

Article 6(1) of the Covenant provides that no one shall be arbitrarily deprived of his life and that
the right shall be protected by law. It lays the foundation for the obligation of States parties to
respect and to ensure the right to life, to give effect to it through legislative and other measures,
and to provide effective remedies and reparation to all victims of violations of the right to life.1
Failure to investigate death threats,2 unchecked continuance of life-threatening disease
contracted by author inside of a prison3 and disproportionate police actions in situations
requiring law enforcement4 have been considered to be inconsistent with the protection
guaranteed under Article 6(1).
Article 17 establishes a prohibition on arbitrary or unlawful interference with the family. If an
invasion of this sphere that occurs without the consent of the individual affected represents
"interference," so does any activity that deprives him/her of it altogether.5 Parties to the ICCPR
undertake a general duty to protect the right to privacy which includes protection against
interference by private parties.
Article 23 of the International Covenant on Civil and Political Rights recognizes that the family
is the natural and fundamental group unit of society and is entitled to protection by society and

1
General comment No. 36 on ARTICLE 6 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS 1984
2
Jayawardena v Sri Lanka, Communication 916/2000, UN Doc CCPR/C/75/D/916/2000 (2002), para 7.3
3
Titiahonjo v Cameroon, above n 63, para 6.2
4
Camargo v Colombia, Communication 45/1979, UN Doc CCPR/C/15/D/45/1979(1982), para 13.2
5
Proceedings of the Annual Meeting (American Society of International Law), Vol.90, ARE INTERNATIONAL
INSTITUTIONS DOING THEIR JOB? (MARCH 27-30, 1996), pp. 549-558

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the State. Protection of the family and its members is also guaranteed, directly or indirectly, by
other provisions of the Covenant.6
The rights related to family protection directly impact upon an emotional and often controversial
area of domestic law. Perhaps due to this, the Committee tends to give a significant degree of
latitude to State actions in this area.
In addition to adherence to the protections guaranteed in the ICCPR, states also have an
obligation to undertake measures to give effect to these rights, as required by Article 2(2) and to
provide for an effective remedy when these rights are violated (Article 2(3)).

A. PRINCIPLE OF NON-REFOULEMENT

Non-refoulement is a fundamental principle of international law that forbids a country receiving

asylum seekers from returning them to a country in which they would be in likely danger of
persecution based on race, religion, nationality, membership of a particular social group or
political opinion.7

With regard to refugees, and in addition to their fundamental right to seek and enjoy asylum
from persecution in third states, as recognized, inter alia, by Article 14 of the Universal
Declaration of Human Rights, the general rule is that individual and mass expulsions are
prohibited, unless on grounds of national security or public order.8 In addition, expulsion of a
refugee to a country where his life or freedom may be threatened is strictly prohibited and is
considered by some to be a rule of jus cogens.9

However, on a comprehensive interpretation of the humanitarian regime, standards provide that

evictions, transfers, relocations or expulsions cannot be invidiously discriminatory and may be
under taken only in the specific circumstances provided for in international law and on the basis
of a specific decision by a state authority expressly empowered by law to do so.
6
CCPR General comment No. 19: ARTICLE 23 (THE FAMILY) PROTECTION OF THE FAMILY, THE RIGHT TO
MARRIAGE AND EQUALITY OF THE SPOUSES Adopted at the Thirty-ninth session of the Human Rights
Committee, on 27 July 1990
7
"INTERNATIONAL LAW AND PRACTICE: THE PRINCIPLE OF NON-REFOULEMENT AND THE DE-
TERRITORIALIZATION OF BORDER CONTROL AT SEA". Leiden Journal of International Law 27 (3): 661
8
See ARTICLE 32 OF THE CONVENTION RELATING TO THE STATUS OF REFUGEES 1951
9
See Cartagena Declaration on Refugees, Conclusions III, 5, adopted by the Colloquium on the International
Protection of refugees in Central America, Mexico and Panama, held in Cartagena in 1994, reprinted in UNHCR,
Collection of International Instruments and other Legal Texts Concerning Refugees and Displaced Persons 206, 208
(1995)

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II. SUMMARY OF THE DECISION

A. FACTS

The author, A.B. is a Somali national, born in 1979 and was granted refugee status in Canada in
1993, along with his mother and three siblings. However, owing to his criminal record consisting
of as many as 12 convictions over different charges of bodily harm, armed robbery, stalking,
harassment, he faced a deportation order from the Immigration and Refugee Board of Canada in
2008 on the grounds of “serious criminality” as per section 64 of Immigration and Refugee
Protection Act. His appeal to the Immigration Appeal Division was dismissed owing to the lack
of jurisdiction, having originated from a deportation order for “serious criminality”, which bars
the author’s right to appeal under section 64(2) of the Act. Further, a danger opinion was
obtained from the Minister of Citizenship and Immigration, in accordance with section 115(1) of
the Act. The Minister’s delegate assessed the risk associated with the deportation of the author
back to Somalia. The author comes from a prominent politically influential lineage, being related
to the first and second Presidents of Somalia as well as the first Chief of Police and his father
remains a well known personality in the country. In the danger opinion, after assessing the
backdrop of the author and the contemporary political scenario of the country, it was declared
that it was proportionate to the danger he posed to public in Canada for the author to be deported.

B. ISSUES RAISED

1. Whether the deportation takes away the protection provided under ICCPR Articles 6(1),
7, 17 and 23(1) read along with Article 2(3) or not?
2. Whether the threat posed by the author to the public in Canada outweighs the
personalized risk to be faced by him if deported to Somalia or not?

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C. TRIBUNAL’S CONSIDERATION

1.1. ARTICLE 6(1) AND 7

The tribunal noted the author’s plea that his life would be at a risk in Somalia as his situation
befits properly into several risk categories identified by UNHR10 such as
(a) Individuals perceived as being critical of Al-Shabaab, based on the actions of his half-brother,
who was killed within a month of returning to Somalia from Kenya, for being actively vocal of
his criticisms of Al-Shabaab;
(b) Individuals perceived as supportive of the Federal Government and the international
community, because he is westernized, having spent over 20 years in Canada.
The general legal obligation of States under IPCCR prohibits States to extradite, expel, deport or
otherwise remove a person from its territories whenever there is a substantial apprehension of
irreparable risk to them. The author has presented to the Minister all evidence which surrounds
his risk of ill-treatment in Somalia, which has been thoroughly considered and reviewed and
consequently found that the general human rights abuses and poor country conditions were not
sufficient to establish that the author would be personally at risk if returned to Somalia. The
author has failed to show that they were arbitrary or manifestly erroneous, or amounted to a
denial of justice.
Hence, the tribunal concluded that there is no violation under Article 6(1) and 7 read with Article
2 (3).

1.2. ARTICLES 17 AND 23(1)

Reiterating the Committee’s jurisprudence, it is noted that ordinarily in cases where one member
of the family is to be displaced and separated from the rest, it constitutes an interference with the
person’s family life and the concept of family is to be interpreted broadly.

The committee has to determine if the separation of the author from his family and its effects on
him would be disproportionate to the objectives of the removal.11 In such a case, the committee
has to examine whether the “interference” is arbitrary and unreasonable or justified.

10
See UNHCR, “International protection considerations with regard to people fleeing southern and
central Somalia”, p. 10.

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The Committee recalls that the notion of arbitrariness includes elements of inappropriateness,
injustice, lack of predictability and due process of law,12 as well as elements of reasonableness,
necessity and proportionality.13 It is found that the Act clearly provides the ground of “serious
criminality” for revoking the status of refugee and further deportation. Further, the author has not
adduced any additional evidence to show that the authorities acted arbitrarily.
On the other hand, the Committee also notes that the author’s claims to be the primary caregiver
to his ailing mother since his siblings remain busy and the fact that he has not been to Somalia
for more than 20 years. The means of communication with his family would be limited and he
would not have any real ties in his country of origin.
The committee also noted the State party’s allegation that he has little contact with his family
due to his detention for various crimes committed by him.
In an attempt to balance the conflicting interests, the Committee held that the interference with
the author’s family life, while significant, would not be disproportionate to the legitimate aim of
preventing the commission of further crimes and protecting the public in Canada.
Hence, the Committee upheld the deportation order while rejecting the author’s pleas of
violations of Articles 17 and 23(1) read with Article 2(3).

11
See communication No. 558/1993, Canepa v. Canada, Views adopted on 3 April 1997, para. 11.4.
12
Communication No. 2009/2010, Ilyasov v. Kazakhstan, Views adopted on 23 July 2014, para. 7.4.
13
Committee’s general comment No. 35 (2014) on liberty and security of person, para 12

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D. DISSENTING OPINION OF VÍCTOR MANUEL RODRÍGUEZ-RESCIA

In his dissenting opinion, Víctor Manuel Rodríguez-Rescia raises concerns over the risk of
physical and psychological trauma which would have to be faced by the author as a result of the
deportation to a country to which he has estranged ties, the only connection being only of
nationality. According to him, there were more than humanitarian and compassionate grounds to
not deport the author to a country he had never been in 20 years.

Further, the State has not discharged the burden of proving that the measure undertaken was not
disproportional to the risk the author been put to. The author easily falls under the risk categories
identified by UNHRC and in a similar case14 the State had been prevented from deporting a
person since his lack of family or clan support would leave him in a situation of extreme
vulnerability.

E. DISSENTING OPINION OF FABIÁN OMAR SALVIOLI

In his dissenting opinion, Fabián Omar Salvioli relies on the principle of non-refoulement to
establish that in the present case, the non-refoulement principle is a peremptory norm and in no
case derogation from it shall be permissible, without the necessity to refer to any additional
arguments — especially not the conduct of the person in question, no matter how reprehensible.
As a result, such deportation o the author in the present case would undeniably be in
contravention to Article 17 of the Covenant.

14
Warsame v. Canada, communication No. 1959/2010

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F. ANALYSIS

The right to life is a right which should not be interpreted narrowly. It relates to the prerogative
of individuals to be free from acts and omissions intended or expected to cause their unnatural or
premature death, as well as to enjoy a life with dignity. Article 6 guarantees this right for all
human beings, without distinction of any kind, including for persons suspected or convicted of
even the most serious crimes.15

On the crucial issue of deportation, despite the clearly established principle of non-refoulement
in cases where the deportation would lead to the subjecting the author to the risks of ill treatment
and torture, the Canadian executive has managed to create a narrow leeway to go ahead with the
deportation posed against the risk of public safety in Canada.

Various empirical studies16 have revealed a pattern which is followed by the Canadian Supreme
Court which is not completely compatible with the protections accorded under ICCPR, for
instance, in a case of appeal from the Federal Court of Appeal, the Apex Court declined to admit
that the Canadian Immigration laws lacked an effective mechanism to accommodate provisions
relating to a right to family reunification.

In the present case, against the backdrop of the principle of non-refoulement being a peremptory
norm, the author has been deported back to his country of origin, despite there being relevant
considerations to show the clear risks of ill treatment and the substantial estrangement from all
personal ties with his family.

In any case, the author in VMRB v Canada sought to challenge his deportation order where the
Government of Canada confirmed that it would not extradite the author to his country of origin
and rather gave him the opportunity to select a safe third country.17

A similar position could have been adopted by the Committee in the present case to balance the
competing interests of all the parties.
15
General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to
life
16
Catherine Lauvernge “INTERNATIONAL HUMAN RIGHTS IN CANADIAN IMMIGRATION LAW—THE CASE
OF THE IMMIGRATION AND REFUGEE BOARD OF CANADA” Indiana Journal of Global Legal Studies , Vol.
19, No. 1 (Winter 2012), pp. 305-326
17
VMRB v Canada, Communication 236/1987, UN Doc CCPR/C/33/D/236/1987 (1988), para 6.3

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