CCPR/C/116/D/2327/2014
international communications before various treaty bodies, including the Committee,
rendered moot because their H&C application was successful. Recently, two
communications before the Committee involving Canada were discontinued for this reason:
communications No. 2138/2012 and No. 2144/2012.
6.6
The State party also responds to the author’s argument that she is delaying her H&C
application so as to “have the opportunity to present a strong and effective application”.
The State party considers that the author’s explanations for her delay in filing an
application confirm that this remedy is both available and effective and must therefore be
exhausted for purposes of admissibility. While she claims that she is “presently dealing
with psychological issues which made it difficult for her to obtain employment”, she states
that she has been employed since 2013. It is inappropriate for the author to purposely delay
the making of an H&C application when eligible to apply. The process is not intended to be
an alternative immigration stream or an appeal mechanism for failed asylum claimants. It is
reserved for applicants who will personally suffer unusual and undeserved, or
disproportionate, hardship if required to follow the standard procedure of applying to
immigrate to Canada through normal channels, i.e., from outside the country. Positive H&C
consideration may be warranted when the period of inability to leave Canada owing to
circumstances beyond the applicant’s control is of considerable duration and when there is
evidence of a significant degree of establishment in Canada. The author claims that she is
purposely choosing to delay accessing an available and effective remedy; thus, it cannot be
said that her current circumstances are beyond her control. Therefore, it is inappropriate for
the author initially to allege that the State party violated its obligations under the Covenant
by denying her access to a domestic remedy but later to take the position that it is not an
effective remedy when access to that remedy became available to her and she purposely
failed to avail herself of it.
6.7
The State party also considers that the communication is inadmissible as manifestly
ill-founded because the author has not substantiated on even a prima facie basis her
allegations with respect to articles 6 and 7. The Refugee Protection Division found that the
author was not credible. The documentary evidence she provided made “no mention of the
[author] in a situation where if [her] allegations were true the panel would expect her to be
mentioned”. The Division explained that it expected that the author would be mentioned in
the documentation she provided for the following reasons: extensive documentation
concerning this murder case was available owing to the high level of publicity surrounding
the murder of the author’s brother I., a British citizen; there were numerous individuals and
legal teams involved in the murder case, such that the facts surrounding the case were well
documented; the author comes from a large family, many of whose members continue to
reside in Bangladesh and provide her with information; and the panel has experience with
claims from Bangladesh and is aware that the press in Bangladesh is very active. The
Division commented on the significant amount of documentary material on the murder and
intimidation allegations, noting that that was due partly to the author’s family’s efforts to
ensure that the Government of the United Kingdom was aware that it would be a
miscarriage of justice if the murderers of a British citizen were not prosecuted.
Additionally, the Division noted that there had been in-depth analyses of the risks faced by
the author’s family in Bangladesh as a result of hearings on the United Kingdom asylum
applications of the author’s sister, L., and the author’s nephew. The Division attached very
little probative value to the police complaint filed by the author since it had been created by
the author herself on the day she left Bangladesh, when she knew that she would be seeking
refugee protection in Canada. In addition, the complaint did not specifically identify
anyone, and the author’s immediate departure from Bangladesh ensured that it could not be
investigated further.
6.8
The Refugee Protection Division noted that neither the author nor her mother was
mentioned in documents relating to the period before and during the murder trial (including
6