CAT/C/43/D/331/2007 4.2 The State party describes the various remedies sought by the complainant in order to show that the procedure was legal and that the Committee does not need to re-examine the facts of the case. The State party believes that, in the absence of proof of an obvious error, abuse of process, bad faith, obvious bias or serious irregularities in the procedure, the Committee should not substitute its own findings of fact for those of the Canadian authorities. 4.3 The State party begins by questioning why the complainant did not seek asylum in France or Switzerland before arriving in Canada, despite having transited through those two countries. The State party quotes the complainant’s explanation that he was in the hands of traffickers who told him what to do. With regard to the refusal to grant refugee status, on 5 May 2005, the Department of Citizenship and Immigration Canada asked the Immigration and Refugee Board to have Mr. Minani excluded from the refugee protection system on the grounds that the organization to which he belonged had committed human rights violations of which he was aware. Having heard oral testimony from Mr. Minani and his counsel, the Board decided to exclude Mr. Minani from the refugee protection system on 7 September 2005. The State party submits that the Board questioned Mr. Minani at length about PAAmasekanya’s activities. The complainant responded to the Board’s questions by saying that he had no knowledge of the crimes attributed to the organization. The Board concluded that “the mere fact that he was a member thereof is sufficient reason to exclude him” from the protection system. The State party considers that this issue does not fall within the jurisdiction of the Committee, as the Board’s initial decision relates solely to the complainant’s exclusion from the protection system and not to the alleged risk of torture. 4.4 On 23 September 2005, the complainant applied for leave and for judicial review of the Board’s decision. He stated in his application that he had not personally committed or encouraged the crimes in question, and that he did not hold a position of authority within PA-Amasekanya. He alleged that he was a “mere member” of the organization.6 The State party argues that the complainant did not contest the Board’s affirmation that the organization was a movement “that incited and perpetrated violence”.7 On 3 December 2005, the Federal Court of Canada rejected the complainant’s application for leave and for judicial review without giving a reason. The State party asserts that in order to obtain leave to apply for judicial review, the complainant needed to show that he had an arguable case, which required a lesser burden of proof than that required for judicial review on the merits.8 The Court can grant an application if it is established that an administrative body has committed an error of jurisdiction, natural justice, law or any other apparent error, or error made in a perverse or capricious manner. The State party recalls that the Court did not find that any of these circumstances applied in the present case. 4.5 On 9 May 2006, the complainant applied to the Immigration and Refugee Board to reopen the procedure on the grounds that it had committed an error in its decision of 7 September 2005: it had taken into account a Human Rights Watch report of which he had not been given a translation and to which he could not respond.9 This report described a massacre perpetrated by an organization referred to as “Amasekanya” by certain communities. The complainant argued that the organization of which he was a member had been confused with the organization mentioned by Human Rights Watch, and that that confusion was central to his exclusion from the refugee protection system. On 23 May 2006, the Canada Border Services Agency (CBSA) lodged an objection to Mr. Minani’s application to reopen the procedure on the grounds that the document in question had been 6 7 8 9 GE.09-46723 In quotation marks in the submission. Ibid. The State party adds other expressions taken from the text. In paragraph 14 of its submission, the State party refers to Canadian case law in the matter. This report was referred to in a footnote. 5