CAT/C/35/D/238/2003
Page 6
rejecting his application for asylum. Noting also the complainant’s information about the
financial implications of seeking such review, the Committee recalls that legal aid for
court proceedings can be sought, but that there is no information indicating that this has
been done in the case under consideration.
[7.4]
However, in the light of other similar cases brought to its attention and in
view of the limited hours of free legal assistance available for asylum-seekers for
administrative proceedings, the Committee recommends to the State party to undertake
measures to ensure that asylum-seekers are duly informed about all domestic remedies
available to them, in particular the possibility of judicial review before the courts and the
opportunity of being granted legal aid for such recourse.
[7.5]
The Committee notes the complainant’s claim about the likely outcome were
the case to be brought before a court. It considers, nevertheless, that the complainant has
not presented enough substantial information to support the belief that such remedy would
be unreasonably prolonged or unlikely to bring effective relief. In the circumstances, the
Committee finds that the requirements under article 22, paragraph 5 (b), of the
Convention have not been met.
The complainant’s renewed complaint
5.1
On 31 June 2001, the complainant filed a new complaint before the
Committee, arguing that the grounds upon which the Committee had declared the case
inadmissible no longer applied. He stated that, on 24 January 2000, he had applied for
legal aid, which was rejected by the County Governor of Aust-Agder on 5 July 2000.
On 14 March 2001, the Ministry of Labour and Administration rejected his appeal
against the County Governor’s decision. As to the possibility of retaining his own
lawyer, in view of his precarious pecuniary situation, he would be unable to afford
either the necessary legal fees and filing costs, or an award of costs, if unsuccessful.
Nor could he represent himself, as he scarcely speaks Norwegian and lacks
knowledge of the relevant rules of procedural and substantive law. Accordingly, the
complainant argued that in practice, there was no “available” or “effective” remedy
which he could pursue, and that the complaint should therefore be declared
admissible.
5.2
On 21 August 2002, the renewed complaint was registered as complaint No.
238/2003 and transmitted to the Government of the State party for comments on its
admissibility.
The State party’s submissions on the admissibility of the renewed complaint
6.1
On 27 March 2003, the State party contested the admissibility of the renewed
complaint, arguing that paragraph 7.3 of the Committee’s original inadmissibility
decision could be read in two ways. On the one hand, reading the second sentence in
isolation would suggest that once legal aid was sought, admissibility would have to be
reconsidered. On the other, the first sentence suggested a complainant must initiate
judicial review proceedings, and a failure to do so – even following denial of legal aid
– disposed of the issue. In the State party’s view, the latter approach was most logical,
and was supported by the context of the decision’s paragraph 7.2, which rehearsed the
arguments on the availability and effectiveness of judicial review. In this light, the
first sentence of paragraph 7.3, read in conjunction with 7.5, constitutes the
conclusive response of the Committee, and the second sentence inter alia bearing the
word “also” was superfluous additional reasoning.
6.2
Even if the Committee held the complaint inadmissible simply for failure to
seek legal aid, the complaint would not, according to the State party, become