CAT/C/57/D/529/2012
8.3
The Committee notes the State party’s argument that, inter alia, the complaint
should be declared inadmissible under article 22 (5) (b), of the Convention, as the
complainant failed to apply for leave to seek judicial review of the 15 January 2010
decision of the Refugee Protection Division. The Committee notes the complainant’s
submission that she could not afford a lawyer to appeal the decision. In this regard, the
Committee observes that the complainant did not provided any information about the cost
of legal representation or court fees nor about the possibilities or any efforts on her part to
obtain legal aid for the purpose of initiating proceedings before the Federal Court. 21 The
Committee also observes that she was represented by legal counsel for her Refugee
Protection Division hearing, her pre-removal risk assessment application and her
application to the Federal Court for leave to seek judicial review of the negative preremoval risk assessment decision. The Committee further notes that the complainant did
challenge the effectiveness of the remedy of judicial review of the decision, by stating that
80 to 85 per cent of such applications were rejected, but it notes that the complainant did
not address the State party’s arguments about the effectiveness or availability of the above
remedy nor did she furnish any evidence that it would be unreasonably prolonged or
unlikely to bring effective relief in her particular case. In the light of this information, the
Committee is satisfied with the arguments of the State party that, in this particular case,
there was an available and effective remedy that the complainant has not exhausted. In the
present case, the Committee considers that an application for leave to apply for a judicial
review of the decision would have been an effective remedy in the complainant’s case. 22
8.4
The Committee is therefore of the view that, in this case, all domestic remedies have
not been exhausted in accordance with article 22 (5) (b) of the Convention.
9.
Accordingly, the Committee decides:
(a)
That the communication is inadmissible under article 22 (5) (b) of the
Convention;
(b)
That the present decision shall be communicated to the complainant and to
the State party.
21
22
16
See for example, R.S.A.N. v. Canada, para. 6.4.
See for example, Aung. v. Canada, para. 6.3; and communication No. 604/2014, Z.H. v. Canada,
decision adopted on 20 November 2015, para. 7.3.