CAT/C/56/D/604/2014
6.5
The State party further observes that claimants have additional domestic remedies
available to them during the 12-month period of ineligibility to apply for a pre-removal risk
assessment or consideration on humanitarian and compassionate grounds. Where a claimant
seeks leave to apply for a judicial review of a decision by the Refugee Protection Division
or Refugee Appeal Division , this recourse generally occurs during that 12-month interval.
Moreover, a stay of removal may be available pending the outcome of an application to the
Federal Court for leave and for judicial review of a decision of the Refugee Protection
Division or of the Refugee Appeal Division. In addition, provision is made in section 112
(2.1) of the Immigration and Refugee Protection Act for exemptions from the 12-month
pre-removal risk assessment ineligibility period when there has been a change in conditions
in a claimant’s country of nationality that could put him or her at risk. The Act also
provides for exceptions to the 12-month ineligibility period for making an application based
on medical humanitarian and compassionate grounds or where removal may have an
adverse effect on the best interests of a child.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any complaint submitted in a communication, the Committee
must decide whether or not it is admissible under article 22 of the Convention. The
Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention,
that the same matter has not been and is not being examined under another procedure of
international investigation or settlement.
7.2
In accordance with article 22 (5) (b) of the Convention, the Committee does not
consider any complaint, unless it has ascertained that the complainant has exhausted all
available domestic remedies. This rule does not apply where it has been established that the
application of those remedies has been unreasonably prolonged, or that it is unlikely, after a
fair trial, to bring effective relief to the alleged victim.
7.3
The Committee takes note of the State party’s argument, inter alia, that the
complaint should be declared inadmissible under article 22 (5) (b), of the Convention, as
the complainant failed to pursue with due diligence his application for leave to apply for a
judicial review of the 18 October 2013 decision by the Refugee Appeal Division dismissing
his appeal against the 21 June 2013 decisions of the Refugee Protection Division. The
Committee notes that the complainant had applied for leave for a judicial review of the
Refugee Appeal Division’s decision on 5 December 2013, but that it was denied because of
the complainant’s failure to file the required materials. The Committee further notes that
the complainant does not challenge the effectiveness of the remedy of judicial review of the
decision, nor does he provide an explanation as to why he did not file the required
documents on time, although he had an opportunity to do so. The Committee further notes
that the complainant has not argued that he was represented by a State-appointed lawyer at
the relevant time, recalls that errors made by a privately retained lawyer cannot normally be
attributed to the State party41 and concludes that the complainant has failed to advance
sufficient elements to justify his failure to complete his application for a judicial review of
the decision by the Refugee Appeal Division in his case. The Committee observes that the
complainant failed to diligently exhaust the remedy with respect to that negative decision.
In the present case, the Committee does not consider that application for leave to apply for
a judicial review of the decision would have been an ineffective remedy in the
41
See communications No. 284/2006, R.S.A.N. v. Canada, decision on inadmissibility adopted 17
November 2006, para. 6.4; and No. 307/2006, E.Y. v. Canada, decision on inadmissibility adopted 4
November 2009, para. 9.4.
17
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