CAT/C/66/D/749/2016 Annex [Original: French] Individual (dissenting) opinion of Abdelwahab Hani 1. With regard to the non-exhaustion of domestic remedies, the complainant states in paragraph 2.9 that he appealed to the Refugee Review Tribunal, which upheld the Minister’s decision on 3 September 2014. On 29 September 2014, he appealed before the Federal Circuit Court of Australia. On 8 March 2016, however, he withdrew this application because the day before the hearing, a new barrister who advanced the opinion that there were no prospects of success had taken the case. On 9 March 2016, the complainant appealed to the Minister for Immigration and Border Protection to intervene on his behalf, but his request was rejected on 6 April 2016. The complainant maintains that he has thus exhausted all available domestic remedies. 2. The State party notes in paragraph 4.2 that the complainant was allegedly acting on the advice of his legal counsel that the case had no reasonable prospects of success. 3. In paragraph 5.2, the complainant explains that he did apply to the Federal Circuit Court but was given a negative opinion as to his prospects of success by his barrister. He also refers to section 486I of the Immigration Act, which states: (1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success; (2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been. 4. The complainant thus had no choice but to withdraw his application. Given the negative opinion of his lawyer, who, under section 486I of the Immigration Act, could neither introduce nor plead the complainant’s case without incurring penalties, he was prevented from applying to any other court. 5. It is likely that the lawyer’s conclusion is not, as stated by the Committee in paragraph 7.3, a “personal conclusion” but an obstacle that prevented the complainant from exhausting this domestic remedy, as the lawyer was not allowed to commence litigation without certifying in writing that there were reasonable grounds for believing that the complainant's case had a reasonable prospect of success. 6. Section 486I of the Migration Act establishes admissibility requirements for the commencement of litigation that must be met by counsel, on pain of the large dissuasive penalties enumerated in part 8B of the Act, including sections 486E and 486F, on costs orders where proceedings have no reasonable prospect of success. This part of the Act, introduced by the 2005 reform, is specific to migration litigation. It must be considered an obstacle to the commencement of migration litigation, not an integral part of the general ethical rules applicable to the legal profession. 7. The failure to lodge this appeal or the withdrawal of the application by the new lawyer cannot be put down to a mere personal opinion or error of judgment on the lawyer’s part. 8. The State party does not explain how this obstacle incorporated into the law is compatible, in this case, with requirements for an available and effective remedy. 9. This obstacle compromises both the right to counsel and the effectiveness of the remedy in question. In its jurisprudence, the Committee has expressed the view that domestic remedies should be available and effective and that they should be accessible in practice without obstacles of any nature, as stated in paragraph 35 of its general comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22. GE.19-14946 7