In 2006, Guadalupe Herrera Rivera (GHR), a Mexican national, claimed asylum in Canada, along with her then husband and their two minor children. Canadian authorities denied the claim on the basis that it lacked credibility.
In April 2008, GHR, a long-term survivor of domestic violence, reported a violent incident to Montreal police. Following the incident, she separated from her husband and took refugee in a domestic violence shelter.
In July 2008, the Federal Court of Canada dismissed an application for judicial review of the decision to deny the claim for asylum.
In October 2008, ‘Assistance aux femmes’, acting on behalf of GHR, filed applications with Immigration Canada for a pre-removal risk assessment (PRRA) and on humanitarian and compassionate (H&C) grounds. The H&C grounds application included information about GHR’s experiences of domestic violence, the inadequate protection in Mexico against such violence, and the risk of GHR experiencing further violence if deported to Mexico.
In November 2008, GHR’s husband threatened to kill her and commit suicide if she failed to return to Mexico with him. Police immediately detained him and had him undergo a psychiatric evaluation. A month later, he contacted the refugee where GHR was staying, claiming to be a family friend and alleging that GHR was not a victim/survivor of domestic violence.
In January 2009, Canada deported GHR’s husband to Mexico, where he was seen watching GHR’s home on many occasions. GHR later divorced her husband and gained legal custody of their children.
In April 2009, Canadian authorities dismissed GHR’s PRRA application, including on the basis that she had failed to prove that Mexican authorities were unable to protect her effectively against domestic violence.
Her H&C grounds application was dismissed in October that same year. Reasons for the dismissal included that Mexico had enacted new laws to protect women against violence and the author could live elsewhere in Mexico or seek refuge in a shelter. An application for leave to initiate judicial review was denied and, in November 2009, the Federal Court of Canada ordered a stay of removal.
In June 2010, GHR submitted a second PRRA application.
In September 2010, GHR submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) claiming that, if Canada deported her to Mexico, it would violate her rights under articles 1, 2(a)-2(d), 5(a) and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). GHR requested interim measures to prevent Canada from deporting her to Mexico while her communication was pending before the CEDAW Committee.
Canada’s observations on admissibility
Canada challenged the admissibility of the communication on three grounds.
Incompatible with CEDAW
First, Canada claimed that the communication was incompatible with CEDAW and, therefore, inadmissible under article 4(2)(b) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).
It submitted that the CEDAW Committee lacked jurisdiction to consider the communication because GHR was seeking to apply the obligations under CEDAW in an extraterritorial manner. According to the State Party, the alleged violations concerned Mexico and not Canada, and it could not ‘be held responsible for discrimination in the jurisdiction of another State, even if the author could establish that she would be subject to discrimination … due to gender-based violence in Mexico.’ Canada submitted that, in contrast to the obligations in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the International Covenant on Civil and Political Rights, CEDAW
does not deal directly (or indirectly) with removal to torture or other serious threats to life and the security of the person. The author may only bring a communication concerning Canada related to alleged violations under the Convention committed by and under the jurisdiction of Canada…
Manifestly ill-founded and not sufficiently substantiated
Second, Canada submitted that the communication was manifestly ill-founded and not sufficiently substantiated and should be declared inadmissible under article 4(2)(c) of the Optional Protocol. It claimed that GHR had failed to show that Canada’s decision to deny her asylum was ‘due to a failure to pursue a policy of eliminating discrimination against women in Canada (art. 2 of the Convention)….’ It further claimed that GHR had not provided any evidence that
the processing of her immigration case was in any way shaped by, or the result of, a failure by Canada ‘to modify the social and cultural patterns of conduct of men and women’ in order to eliminate prejudices and practices based on discriminatory ideas against women (art. 5(a)) or of a further failure to adopt all necessary measures at the national level aimed at achieving the rights in the Convention (art. 24).
Failure to exhaust domestic remedies
Last, Canada claimed that GHR had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol. Canada submitted that GHR could have sought leave to apply for judicial review of the negative PRRA application, which was dismissed in April 2009. It further submitted that GHR’s second PRRA application, which included new information related to her situation of domestic violence, was still pending. Canada reasoned that if the author is successful in her second PRRA application, ‘she would become a protected person, and could apply for permanent residence status and ultimately citizenship. If she were unsuccessful, she could then seek leave to apply for judicial review of the negative decision….’
Committee’s admissibility decision
The CEDAW Committee determined that Guadalupe Herrera Rivera had failed to exhaust domestic remedies and, on that basis, declared the communication inadmissible under article 4(1) of the Optional Protocol. It reasoned that GHR had failed to seek leave to apply for judicial review of the second PRRA application, which was dismissed by the time her communication reached the Committee for determination, and that a favourable review decision could effectively stop her deportation to Mexico.
Having declared the communication inadmissible for failure to exhaust domestic remedies, the Committee declined to consider the remaining grounds of inadmissibility.
Communication No. 26/2010, UN Doc. CEDAW/C/50/D/26/2010 (30 November 2011)