CAT/C/62/D/702/2015
September 2015 was never presented. Complainants also failed at the time to cite this as a
reason for their fear and consequent failure to report for removal.
6.5
The Committee recalls its jurisprudence that judicial review in the State party is not
a mere formality and that the Federal Court may, in appropriate cases, look at the substance
of a case.38 Mere doubt about the effectiveness of a remedy does not, in its view, dispense
with the obligation to exhaust it. The Committee concludes that the complainants have
failed to advance sufficient elements which would show that judicial review of the preremoval risk assessment and administrative deferral of removal would have been
ineffective in this case and have not justified their failure to avail themselves of these
options. It further notes that the complainants have not indicated that they were represented
by a State-appointed lawyer at the relevant time, and recalls its jurisprudence that errors
made by a privately retained lawyer cannot normally be attributed to the State party.39
6.6
Accordingly, the Committee is satisfied with the argument of the State party that, in
this particular case, there were remedies, both available and effective, which the
complainants have not exhausted. In the light of this finding, the Committee does not deem
it necessary to examine the State party’s assertion that the communication is inadmissible
as manifestly unfounded.
7.
The Committee therefore 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.
38
39
12
See Aung v. Canada, para. 6.3.
See R.S.A.N. v. Canada (CAT/C/37/D/284/2006), para. 6.4.