CCPR/C/117/D/2387/2014 Issues and proceedings before the Committee Consideration of admissibility 7.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol. 7.2 The Committee notes, 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. 7.3 With regard to the exhaustion of domestic remedies, the Committee notes the numerous applications made by the author to prevent his deportation to Somalia, including an appeal of his deportation order, submissions in response to a request for a danger opinion issued against him, and an application for judicial review of the danger opinion issued in his case. The Committee notes that, according to the State party, the author did not exhaust domestic remedies because he failed to make an application for permanent residence on humanitarian and compassionate grounds, and he failed to submit an application before the Federal Court for leave to seek judicial review of the negative decision of the Immigration Appeal Division of 8 April 2009. The Committee also notes the author’s submission that judicial review of the Division’s decision of 2009 had objectively no prospect of success and that, in view of the discretionary nature of the assessment on humanitarian and compassionate grounds, those remedies are not effective and therefore do not need to be exhausted. 7.4 The Committee recalls its jurisprudence to the effect that authors must avail themselves of all judicial remedies insofar as such remedies appear to be effective in the given case, and are de facto available. 21 The Committee observes that a humanitarian and compassionate application for permanent residence does not shield the author from removal to Somalia during the consideration of his application and therefore does not constitute an effective remedy.22 With regard to the author’s failure to appeal the negative decision by the Immigration Appeal Division, the Committee observes that the decision was based on section 64 (2) of the Immigration and Refugee Protection Act, which provides that an author has no right of appeal if “he was found to be inadmissible because of serious criminality”. In 2008, the author was found to be inadmissible and a deportation order was issued on 7 April 2008. On 1 May 2008, the author appealed that decision before the Immigration Appeal Division. His appeal was rejected on 8 April 2009. The Committee observes that an appeal would only have been successful if the author had been able to raise a “fairly arguable case”, a “serious question to be determined” or an error in law or jurisdiction. It notes that the State party has not explained how the author could have met that threshold considering the clear domestic legislation and jurisprudence in that regard. In the specific circumstances of the case, the Committee considers that an application for leave to appeal to the Federal Court did not constitute an effective remedy. Therefore, the Committee concludes that it is not precluded by the requirements of article 5 (2) (b) of the Optional Protocol from examining the present communication. 7.5 The Committee notes the State party’s challenge to the admissibility of the communication on the ground that the author failed to sufficiently substantiate his claims under article 2 (3), read in conjunction with articles 6 (1), 7, 12 (4), 13, 17, 18 and 23 (1) of the Covenant. The Committee considers that those issues are intimately linked to the merits of the case, and finds that the claims of violation of article 2 (3), which is accessory in 21 22 10 See communications No. 1003/2001, P.L. v. Germany, decision of inadmissibility adopted on 22 October 2003, para. 6.5; and No. 433/1990, A.P.A. v. Spain, decision of inadmissibility adopted on 25 March 1994, para. 6.2. See communication No. 1898/2008, Choudhary v. Canada, Views adopted on 28 October 2013, para. 8.3; and Warsame v. Canada, para. 7.4. GE.17-03930