CCPR/C/122/D/2292/2013 their extradition, expulsion or refoulement.”24 He recalls that the Committee has confirmed that, when there is a foreseeable risk of corporal punishment, expulsion violates article 7 of the Covenant if the risk is real, in other words if it is a necessary and predictable consequence of expulsion. 25 The author also refers to Judge v. Canada, 26 in which the Committee considered that the author’s extradition from Canada to the United States of America violated articles 6 and 7 of the Covenant. In conclusion, the author contends that the State party violated his rights under articles 6, 7, 9, 17, 18 and 27 of the Covenant by not assessing his fear in accordance with international rules in order to ensure that his rights under the Covenant would be respected if he were returned to his country. Additional observations by the State party on admissibility and merits 6.1 On 23 March 2017, the State party submitted its additional observations on the admissibility and merits. The State party reiterates its previous observations and maintains that the communication is inadmissible under articles 2 and 5 of the Optional Protocol since the author has failed to exhaust the available domestic remedies, and under article 3 of the Optional Protocol and rule 96 (d) of the rules of procedure since the alleged violations of articles 9 (1), 17, 18 and 27 are incompatible ratione materiae with the Covenant. In the alternative, since the author never alleged a violation of article 17 of the Covenant before the Canadian courts, this claim should be declared inadmissible on grounds of nonexhaustion of domestic remedies. The communication should also be dismissed on the merits, as the author has failed to demonstrate that Canada has in any way neglected its obligations under the Covenant. 6.2 With regard to non-exhaustion of domestic remedies, the State party indicates that the author has not filed an application for permanent residence on humanitarian and compassionate grounds (“H&C application”). This remedy is an exceptional measure derogating from the rules established by law for obtaining permanent residence and permits the granting of permanent residence on humanitarian grounds. An individual whose H&C application is rejected may contest this decision before the Federal Court. Furthermore, a request for a judicial stay of removal may be filed with the Federal Court pending a request for leave to seek judicial review of an unfavourable H&C decision. The State party recalls the Committee’s jurisprudence according to which an H&C application is a remedy that must be exhausted before the Committee can consider a communication admissible. 27 It emphasizes that, in Dastgir v. Canada and Khan v. Canada, the Committee observed that the possibility of submitting an H&C application was among the domestic remedies available for access to an effective remedy, 28 and therefore declared the two communications inadmissible on grounds of non-exhaustion of domestic remedies. 6.3 However, the State party expresses its concern that in Warsame v. Canada and K.A.L. and A.A.M.L. v. Canada, the H&C application was not considered a remedy that must be exhausted for the purposes of admissibility. 29 The State party disagrees with this jurisprudence and argues that, taking into account the specific circumstances of the case, the author had a right under the Immigration and Refugee Protection Act to submit an H&C application. Moreover, under article 25 (1) of the Immigration and Refugee Protection Act, when an individual submits an H&C application, the Minister “must” examine the case. IRCC therefore has an obligation to examine each H&C application filed. The H&C application is thus a fair and equitable administrative procedure, subject to judicial review, which, in the event of a favourable decision, would allow the author to remain in Canada. The State party submits that, for the purposes of admissibility, the H&C application is an effective domestic remedy that must be exhausted by any individual who has been denied 24 25 26 27 28 29 8 General comment No. 20 (1992) on the prohibition of torture, or other cruel, inhuman or degrading treatment or punishment, para. 9. The author refers to the cases G.T. v. Australia (CCPR/C/61/D/706/1996) and A.R.J. v. Australia (CCPR/C/60/D/692/1996). See Judge v. Canada (CCPR/C/78/D/829/1998). See Khan v. Canada (CCPR/C/87/D/1302/2004), para. 5.5. See Dastgir v. Canada (CCPR/C/94/D/1578/2007), para. 6.2, and Khan v. Canada, para. 5.5. See Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.4, and K.A.L. and A.A.M.L. v. Canada (CCPR/C/104/D/1816/2008), para. 6.5. GE.18-09612