CEDAW/C/59/D/49/2013 given that she was previously a victim of domestic violence and the Mexican authorities failed to protect her. The Committee notes that the State party challenges the admissibility of the communication for failure to exhaust domestic remedies under article 4 (1) of the Optional Protocol. The Committee also notes that the State party maintains that the communication should be considered inadmissible, in accordance with articles 4 (2)(b) and (c) of the Optional Protocol, on the ground that the author’s claims are incompatible with the provisions of the Convention, manifestly ill-founded and not sufficiently substantiated. 9.4 With regard to the non-exhaustion of domestic remedies, the Committee notes the State party’s argument that the author could have applied for permanent residence on humanitarian and compassionate grounds, yet she failed to do so. The Committee takes notes of the State party’s contention that a pending application on such grounds would not halt the author’s deportation and that applications on humanitarian and compassionate grounds are no longer based on an assessment of the risk upon return. The Committee considers that, by having sought a stay of deportation and judicial review of the negative pre-removal risk assessment decision of 5 December 2012 before the Federal Court, the highest judicial body in the State party, the author exhausted the domestic remedies available to her for the purposes of admissibility under article 4 (1) of the Optional Protocol. 16 In the circumstances, the Committee is of the view that the author’s failure to submit such an application on humanitarian and compassionate grounds does not affect the exhaustion of remedies and that such submission is not necessary to satisfy the requirements of article 4 (1) of the Optional Protocol. 9.5 With regard to the State party’s argument that the author’s claims are incompatible with the provisions of the Convention, which, it submits, do not contain an obligation of non-refoulement, the Committee stresses that, under article 2 (d) of the Convention, States parties undertake to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions act in conformity with this obligation. The Committee also stresses that, according to its established jurisprudence, article 2 (d) encompasses the obligation of States parties to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party. 17 The Committee further recalls that gender-based violence is a form of discrimination against women and includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. 18 However, the Committee has established that what amounts to serious forms of gender-based violence triggering the protection afforded under article 2 (d) depends on the circumstances of each case and is determined by the Committee on a case-by-case basis at the merits stage, only if the author has made a prima facie case before the Committee by sufficiently substantiating such allegations. 19 __________________ 16 17 18 19 14-67406 See, a contrario, communication No. 26/2010, Herrera Rivera v. Canada, decision of inadmissibility adopted on 18 October 2011. See, for example, M.N.N. v. Denmark (note 9 above), paras. 8.5-8.10; communication No. 35/2011, M.E.N. v. Denmark, decision of inadmissibility adopted on 26 July 2013, paras. 8.4-8.9; and communication No. 39/2012, N. v. the Netherlands, decision of inadmissibility adopted on 17 February 2014, paras. 6.6-6.8. See general recommendation No. 19, para. 6. See note 17, above. 13/14