CAT/C/56/D/604/2014 facts or evidence that may demonstrate that the person is now at risk of persecution, torture, risk to life or risk of cruel or unusual treatment or punishment. Its purpose is to assess whether there have been any new developments since the final Immigration and Refugee Board determination that could affect the risk assessment. For this reason, section 113 (a) of the Immigration and Refugee Protection Act provides that evidence submitted for the purpose of a pre-removal risk assessment must be “new evidence that arose after the rejection [of the claim to refugee protection] or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.” Pre-removal risk assessment decisions may be judicially reviewed by the Federal Court with leave. A judicial stay of removal pending the disposition of that application or the disposition of any application for judicial review of the decision may also be available. To grant a stay, the Court must be satisfied that there is a serious issue with the decision, there is a risk of irreparable harm to the person concerned, and that the balance of convenience favours the applicant. 4.14 On 18 October 2014, the complainant became eligible to apply for permanent residence in the State party on the basis of humanitarian and compassionate considerations and he submitted an application on that basis on 17 December 2014. Such applications must be considered by the Minister of Citizenship and Immigration or his delegate. The assessment consists of a broad, discretionary review by the decision maker to determine whether a person should be granted permanent residency for humanitarian and compassionate reasons. The test is whether the applicant would suffer unusual and undeserved or disproportionate hardship if he or she had to apply for a permanent resident visa from outside of Canada. The decision maker considers and weighs all the relevant evidence and information, including the applicant’s written submissions. Following legislative changes to the State party’s refugee system in 2010, applications on the basis of humanitarian and compassionate considerations are no longer based on the kinds of risks that are already assessed within the separate refugee determination or pre-removal risk assessment processes, such as risk to life or risk of torture. Nevertheless, facts underlying those risks may be relevant insofar as they are related to whether a claimant would directly and personally experience unusual and undeserved or disproportionate hardship in his or her country of origin. Examples of hardship may also include adverse country conditions that have a direct, negative impact on the applicant. Decisions made on the basis of humanitarian and compassionate considerations are also reviewable, with leave, on judicial review by the Federal Court. 4.15 The State party submits that the communication is inadmissible as a result of the complainant’s failure to exhaust all available domestic remedies because: he failed to pursue with due diligence his application for leave to apply for judicial review of the Refugee Appeal Division’s decision; his application for a pre-removal risk assessment is pending; his application for permanent residence on the basis of humanitarian and compassionate considerations is pending; and he would be entitled to seek leave from the Federal Court to apply for a judicial review of any negative assessment or decision made on the basis of humanitarian and compassionate considerations. The State party refers to the Committee’s jurisprudence that a complaint may be inadmissible when the complainant has not pursued domestic remedies with due diligence 8 and that errors by legal representatives hired by a complainant are not attributable to the State and cannot by themselves constitute an excuse for non-exhaustion of domestic remedies. 9 8 9 8 See communication No. 395/2009, H. E.-M. v. Canada, decision adopted 23 May 2011, paras. 6.46.5. Ibid., paras. 6.4-6.5. See also communications No. 307/2006, Yassin v. Canada, decision adopted 4 November 2009, paras. 9.3-9.4; and No. 284/2006, R.S.A.N. v. Canada, decision adopted 17