CEDAW/C/55/D/35/2011 Appendix Individual opinion (dissenting) by Committee member Ms. Dubravka Šimonović, joined by Ms. Ruth HalperinKaddari, Ms. Violeta Neubauer and Ms. Silvia Pimentel 1. At its meeting on 26 July 2013, the Committee on the Elimination of All Forms of Discrimination against Women decided to rule communication No. 35/2011 inadmissible under article 4 (1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women for nonexhaustion of domestic remedies. In the communication, the author, whose application for asylum had been rejected, claims that the State party violated articles 1, 2 (c), 2 (d) and 3 of the Convention, given that she was raped by three men in Burundi before she fled the country owing to political persecution, and voices her fears that she may be subjected to rape or other forms of bodily harm upon being returned to Burundi. 2. The majority of the Committee is of the view that the author’s complaint is inadmissible for non-exhaustion of domestic remedies under article 4 (1). This inadmissibility ground under the Committee’s jurisprudence includes the obligation of the author to raise in substance at the domestic level the claim that she wishes to bring before the Committee so as to enable the domestic authorities and/or courts to have an opportunity to deal with such claim. 1 In the present case, the Committee observed that “the alleged rape was not raised as a ground per se in support of her application for asylum” and concluded “that the State party’s authorities clearly had no opportunity to consider her gender-based allegations, which are at the heart of her communication before the Committee, and were therefore deprived of the opportunity to examine such claims” (para. 8.3). 3. I disagree with the Committee and hold the view that the communication is admissible. Article 4 (1) of the Optional Protocol stipulates that “the Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief”. The State party has referred to the fact that the author’s asylum claim was examined by the Immigration Service and the Refugee Appeals Board. Given that the State party did not refer to any other tribunal to which she may file an appeal against this decision, it should be concluded that the author has exhausted all procedurally available domestic remedies. The State party objected to admissibility for the reason of non-exhaustion of domestic remedies, recalling that, according to the Committee’s jurisprudence, the author needs to raise any allegations of sex-based discrimination at the domestic level. The State party contends that the author failed to raise any allegations of sexbased discrimination before the Immigration Service or the Refugee Appeals Board and that the State party’s authorities therefore had no opportunity to deal with her allegations regarding sex-based discrimination. 4. The pertinent question in the present case is whether the author raised sex-based discrimination, whether intersecting other grounds of persecution or alone, as the basis for her claim during the asylum procedure. That the author mentioned __________________ 1 16/20 See N. S. F. v. United Kingdom of Great Britain and Northern Ireland, communication No. 10/2005, decision of 30 May 2007, para. 7.3. 13-43086