CCPR/C/116/D/2060/2011
an application for leave and judicial review against the negative decisions within the
proceedings for refugee protection before the Immigration and Refugee Board and the
PRRA procedure. The Committee also takes note of the author’s allegation that judicial
review of these decisions is not an effective remedy since it has a very low prospect of
success. The Committee recalls its jurisprudence to the effect that authors must avail
themselves of all judicial remedies in order to fulfil the requirement of article 5 (2) (b) of
the Optional Protocol, insofar as such remedies appear to be effective in the given case and
are de facto available to the author,18 and that mere doubts about the effectiveness of
domestic remedies do not relieve the author of a communication from the duty to exhaust
them.19 The Committee considers that the author has thus failed to exhaust domestic
remedies regarding his claims of violation of articles 6 (1) and 7 of the Covenant
concerning his risk of persecution if deported to Zimbabwe. Accordingly, this part of
communication is inadmissible under article 5 (2) (b) of the Optional Protocol.
6.6
The Committee observes that the State party has not challenged the exhaustion of
domestic remedies in relation to the author’s claims under articles 6 (1) and 7 regarding the
risk he would face if deported owing to his HIV-positive status as well as articles 17 and
23(1) in connection with his separation from his family. The Committee observes that the
author raised these claims within the humanitarian and compassionate proceedings that
concluded on 4 May 2010 with the Federal Court’s dismissal of his application for leave
and judicial review. Therefore, the Committee considers that these claims meet the
admissibility requirement under article 5 (2) (b) of the Optional Protocol. Furthermore, the
Committee considers that such claims are sufficiently substantiated for purposes of
admissibility and that they should be considered on their merits.
6.7
The Committee therefore concludes that the author’s communication is admissible
insofar as it raises issues under articles 6 (1) and 7 in relation to the alleged risk he would
face in Zimbabwe as a person who is HIV-positive and under articles 17 and 23 (1) of the
Covenant in connection with the interference with his family.
Consideration of the merits
7.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
7.2
The Committee notes the author’s claim that his removal from Canada to Zimbabwe
has exposed him to a violation of his rights under articles 6 (1) and 7 of the Covenant since
he would not be able to access the medical treatment that he requires as a result of his HIV
and Mantoux status or to afford antiretroviral medication, which puts his life and health at
serious risk. The Committee also takes note of the State party’s argument that its authorities
had gathered information that indicated that antiretroviral medications are available in
pharmacies in Zimbabwe for about US$ 30 per month or can be obtained for free at several
institutions; that the author has family in Zimbabwe on whose support he can rely; that he
was not taking any antiretroviral medications during his stay in the State party, by his own
choice; that he would be able to purchase those medications privately in Zimbabwe; and
that in the light of his business/work experience and education, he is better placed than the
18
19
12
See communications No. 1003/2001, P.L. v. Germany, decision of inadmissibility adopted on 22
October 2003, para. 6.5; and No. 433/1990, A.P.A. v. Spain, decision of inadmissibility adopted on 25
March 1994, para. 6.2.
See communication No. 1580/2007, F.M. v. Canada, para. 6.3; No. 397/1990, P.S. v. Denmark,
decision of inadmissibility adopted on 22 July 1992, para. 5.4; No. 420/1990, G.T. v. Canada,
decision of inadmissibility adopted on 23 October 1992, para. 6.3; and No. 550/1993, Faurisson v.
France, Views adopted on 8 November 1996, para. 6.1.