CAT/C/62/D/695/2015 State party’s observations on admissibility and merits 4.1 On 6 October 2015 and 10 February 2016, the State party submitted its observations on admissibility and merits and requested the Committee to lift its interim measures request of 11 August 2015. The State party maintains that the complaint is inadmissible on grounds of failure to exhaust domestic remedies and is manifestly unfounded. 4.2 The State party maintains that the complainant has failed to exhaust all domestic remedies since, on 5 December 2015, he became eligible to apply for a pre-removal risk assessment and for a residence permit on the basis of humanitarian and compassionate considerations; that both procedures are effective domestic remedies; and that, in the event of a negative decision on either his pre-removal risk assessment or humanitarian and compassionate application, he could apply to the Federal Court for judicial review. With regard to the pre-removal risk assessment, the State party stated the complainant would be notified promptly of his eligibility and would be given the opportunity to submit an application. Should an assessment application be filed, the complainant would benefit from a stay of removal pending a decision on his assessment. The assessment scheme is founded on the principle of non-refoulement, in accordance with which a person should not be removed from Canada to a country where he or she would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. For persons like the complainant who have already had their claim determined by the Refugee Protection Division, a pre-removal risk assessment application is an evaluation largely based on new 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 determination by the Division that could affect the risk assessment. For that 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 for 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. If the complainant is determined by an assessment officer to be in need of protection, he would not be removed from Canada and would be eligible to apply for permanent resident status. 4.3 The complainant also became eligible to apply for humanitarian and compassionate considerations. When a humanitarian and compassionate application is made by a foreign national in Canada, such as the complainant, it must be considered by the Minister of Immigration, Refugees and Citizenship or his delegate. The assessment of a humanitarian and compassionate application consists of a broad, discretionary review by the decisionmaker to determine whether a person should be granted permanent residency from within Canada for humanitarian and compassionate reasons. The decision-maker considers and weighs all relevant humanitarian and compassionate considerations in a particular case, and may be guided in that assessment by considering whether an applicant would experience unusual and undeserved or disproportionate hardship if he or she had to apply for a permanent resident visa from outside of Canada. A stay is not automatically available on an application for humanitarian and compassionate consideration. However, if compelling humanitarian and compassionate grounds can be demonstrated, a stay of removal may be granted until a final decision is made on the application for permanent residence. 4.4 The State party disagrees with the Committee’s jurisprudence in which the humanitarian and compassionate application was considered a remedy that should not be exhausted for the purposes of admissibility of a complaint submitted to the Committee under article 22 of the Convention.3 In that respect, it maintains that, under section 25 (1) of the Immigration and Refugee Protection Act, once an individual submits a humanitarian and compassionate application, the Minister must examine that individual’s circumstances. Humanitarian and compassionate officers, like pre-removal risk assessment officers, are senior immigration officials employed by Immigration, Refugees and Citizenship Canada, 3 4 The State party refers to Kalonzo v. Canada (CAT/C/48/D/343/2008), para. 8.3; T.I. v. Canada (CAT/C/45/D/333/2007), para. 6.3; and W.G.D. v. Canada (CAT/C/53/D/520/2012), para. 7.4.