CCPR/C/117/D/2387/2014 State party’s additional observations 6.1 On 6 May 2016, the State party submitted additional observations, reiterating the arguments presented in its initial submission. It maintains that the communication is inadmissible because the author has failed to exhaust the available domestic remedies, parts of the communication are incompatible with the Covenant, and the author has failed to substantiate his allegations. In the alternative, the State party considers that the communication should be held without merit for lack of substantiation. 6.2 The State party indicates that the author has failed to file an application for permanent residence on humanitarian and compassionate grounds, pursuant to subsection 25 (1) of the Immigration and Refugee Protection Act. Although the submission of a humanitarian and compassionate application does not serve to automatically stay an enforceable removal order, a regulatory stay of removal would have been granted until a final decision was made on his application for permanent residence. In addition, humanitarian and compassionate decisions are reviewable, with leave, by the Federal Court. 6.3 The State party contests that the officials in the Department of Citizenship and Immigration, who consider humanitarian and compassionate applications, would lack independence because they are in the same department that considers danger opinions. Even if humanitarian and compassionate applications can be considered a discretionary remedy, they remain effective, as demonstrated by J.K.M. v. Canada, which the Committee decided to discontinue. 17 In the case of S.S. v. Canada, the Committee suspended consideration of the communication. The State party recalls the Committee’s consistent views that mere doubts about the effectiveness of domestic remedies do not absolve an author of the requirement to exhaust them. 18 Given the author’s allegation that his circumstances have changed and merit reconsideration, including the alleged steps he has taken to address his anger and alcohol issues, secure employment and renew his close family relations, it is incumbent upon him to bring a humanitarian and compassionate application. 6.4 The State party reiterates that the author’s allegations under article 2 (3) of the Covenant should be held inadmissible pursuant to article 3 of the Optional Protocol. The author’s allegations regarding the flawed character of the domestic proceedings in his case are identical to the ones he made to the Federal Court in his application for leave and for judicial review of the danger opinion. The Federal Court determined that the author had failed to meet the Court’s stated test for granting leave, as he did not demonstrate that there was a “fairly arguable case” or “a serious question to be determined”.19 The State party disputes that, in the danger opinion, the Minister’s delegate ignored specific risk factors that the author had set out in his submissions to the delegate. The State party recalls that the author is being removed pursuant to paragraph 115 (2) (a) of the Immigration and Refugee Protection Act, which requires the delegate to demonstrate that the author is inadmissible on grounds of serious criminality and that he constitutes a danger to the public in Canada. The removal of the author is a proportionate response. 6.5 The State party submits that the author has failed to substantiate his claims under articles 6 (1) and 7 for the purposes of admissibility. In particular, he did not substantiate the claim that he would face an individualized or personalized risk upon removal to Somalia. The State party submits that the majority of the alleged risk profiles (returnee outside of local protection systems; at risk from Al-Shabaab; at risk from government or pro-government forces) relate in fact to being a “Westernized” returnee without local connections. As regards the risk related to the alleged profile of the author’s family in Somalia, the State party submits that the family’s persecution in 1991 is not a valid concern any more, given the numerous political changes that have occurred in Somalia since 1991. 17 18 19 8 See communication No. 2310/2013, J.K.M. v. Canada, decision to discontinue adopted on 3 November 2016. See communications No. 1580/2007, F.M. v. Canada, decision of inadmissibility adopted on 30 October 2008, para. 6.3; and No. 1578/2007, Dastgir v. Canada, decision of inadmissibility adopted on 30 October 2008, para. 6.2. See Bains v. Canada (Minister of Employment and Immigration) (1990), 109 NR 239 [1990] FCJ No. 457 (CA). GE.17-03930