CAT/C/62/D/702/2015 recent Views of the Committee in which it decided that judicial review in the State party does not and should not provide a review of the merits of decisions to expel individuals who face a substantial risk of torture.24 The State party does not accept as a proposition that its domestic system of judicial review, in particular its Federal Court, fails to provide an effective remedy against removal where there are substantial grounds for believing that applicants face a serious risk. It submits that the current system does in fact provide for a judicial review on the merits when there are questions as to whether the decision maker acted within its jurisdiction; whether procedural fairness principles were complied with; whether a factual error was made; and whether the decision maker made a legal error.25 In such cases, the Federal Court would necessarily review the applicant’s claim of risk of torture if returned to his or her country of origin. If the Federal Court decides that there was an error of law or an unreasonable finding of fact, it will grant leave for judicial review and has the authority to set the decision aside and send it back for redetermination by a different decision maker, in accordance with such directions as the Court deems appropriate. 26 The Federal Court will not hesitate to intervene if it determines that the impugned decision has been erroneously made. 27 The State party further submits that its judicial review determinations, using the reasonableness standard, are consistent with the approach of the European Court of Human Rights, whereby judicial review using this standard satisfied the requirement to provide an effective remedy. 28 For these reasons, judicial review is a procedure that must be exhausted for the purposes of admissibility and the authors have failed to provide any explanation as to why they failed to exhaust this remedy. 4.13 The State party also states that the authors had the right to seek leave from the Federal Court to apply for judicial review of the humanitarian and compassionate decision. If successful, this would have resulted in an order for reconsideration of the impugned decision. Although it does not result in an automatic stay, the authors could, in tandem with the leave application, have made a motion for judicial stay of removal pending disposition of the leave application. The authors did not pursue either of the above available and effective remedies and have not provided any explanation for the failure to do so. 4.14 Another avenue available to the complainants, which they did not pursue, was administrative deferral of removal from the Canada Border Services Agency. Individuals who allege new evidence of personal risk (meaning evidence which has not previously been assessed by a domestic decision maker such as the Refugee Protection Division or a preremoval risk assessment officer) may request a deferral from an Agency enforcement officer. Although an Agency enforcement officer has limited discretion in terms of when a removal takes place, 29 the State party’s Federal Court of Appeal has held that an 24 25 26 27 28 29 See Singh v. Canada (CAT/C/46/D/319/2007) para. 8.9. Subsection 18.1 (4) of the Federal Courts Act. Subsection 18.1 (3) of the Federal Courts Act. See Supreme Court of Canada, Kanthasamy v. Canada (Citizenship and Immigration), judgment of 10 October 2015, in which the Court concluded that the humanitarian and compassionate officer had avoided the requisite analysis of whether, in the light of the humanitarian purpose of subsection 25 (1) of the Immigration and Refugee Protection Act, the evidence as a whole justified humanitarian and compassionate relief. See also Federal Court of Canada, Tabassum v. Canada (Citizenship and Immigration), judgment of 19 November 2009, paras. 39 and 43, in which the Court concluded that the pre-removal risk assessment officer had mischaracterized the evidence and erred in his finding that the applicant was not being threatened by her husband; Babai v. Canada (Minister of Citizenship and Immigration), judgment of 30 September 2004, paras. 35 and 37, in which the Court concluded that the pre-removal risk assessment officer had failed to consider contradictory evidence and had made a reviewable error in finding that State protection was available to the applicant; Abbasova v. Canada (Citizenship and Immigration), in which the Court found that the pre-removal risk assessment officer had failed to consider new psychological evidence; Bors v. Canada (Citizenship and Immigration), judgment of 12 October 2010, paras. 56−58 and 73, in which the Court determined that the pre-removal risk assessment officer’s selective review of the evidence had led to an unreasonable finding that the situation of the Roma people in Hungary had improved. See Soering v. The United Kingdom (application No. 14038/88), judgment of 7 July 1989; and Vilvarajah and Others v. The United Kingdom (application Nos. 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87), judgment of 30 October 1991. Subsection 48 (2) of the Immigration and Refugee Protection Act (an enforceable removal order “must be enforced as soon as possible”). 7