CAT/C/20/D/47/1996
page 4
State party's observations on the admissibility of the communication
4.
On 4 December 1996, the Committee, through its Special Rapporteur, sent
the communication to the State party for comments and requested it not to
expel the author while his communication was under consideration by the
Committee.
5.1
In a reply dated 25 March 1997, the State party challenges the
admissibility of the communication.
5.2
The State party notes that the author left his country
on 30 October 1992 and arrived in Canada on or about 15 November 1992. He
claimed refugee status the same day. On 20 July 1993, the competent court,
the Refugee Determination Division of the Immigration and Refugee Board,
rejected the author's claim for lack of credibility. The Federal Court of
Canada denied his request for leave to apply for judicial review of the
Refugee Division's decision.
5.3
An official of the Ministry of Citizenship and Immigration evaluated
whether the author's expulsion would expose him personally to torture or
cruel, inhuman or degrading treatment. The author did not ask the Federal
Court to review the decision. The author also invoked paragraph 114 (2) of
the Immigration Act and asked to be exempted on humanitarian grounds from the
provisions of the Immigration Act and to be allowed to apply for permanent
residence in Canada. On 8 and 30 January 1996, on inspection of the file, it
was concluded that the author had not established humanitarian grounds for
exemption from the provisions of the Immigration Act. The author did not ask
the Federal Court to review those decisions. On 2 April 1996, he was expelled
to the United States.
5.4
The State party points out that the Committee's communication was sent
to it on 4 December 1996, several months after the author's expulsion.
5.5
On 3 July 1996 the author returned to Canada from the United States and
again filed a claim to refugee status. The new claim began a completely new
process identical to the one followed for the first claim. Thus, a
conditional residence prohibition was issued against the author on 3 July 1996
and his claim was referred to the Refugee Determination Division for
consideration on the merits. The expulsion order will not be carried out
unless and until the Refugee Division hands down a negative decision on the
claim to refugee status.
5.6
The author's communication is aimed at preventing him from being sent
back to Sri Lanka in accordance with the expulsion order handed down against
him on 28 December 1992, which became enforceable on 29 November 1995. The
author was expelled from Canada on 2 April 1996. His communication is
therefore completely unwarranted and should be declared inadmissible.
5.7
In addition, a new situation was created by the author's second claim to
refugee status; this situation is totally different from the one which gave
rise to the communication, and is not covered in the communication.