CAT/C/61/D/659/2015 Border Services Agency communicated his negative decision and reasons for it to the legal representative of the complainant and his family. In that regard, he summarized the evidence of risk put forth by the complainant and highlighted the various inconsistencies in the submission. The two risk factors raised in the present complaint, namely the family’s status as failed asylum seekers and the complainant’s past employment with the United Nations, were clearly before the officer and considered in the decision. Ultimately, the officer was not satisfied that there was a personal risk of death or inhumane or excessive treatment or punishment that would warrant a deferral of removal. The complainant and his family did not apply for leave to seek judicial review of that decision. 4.12 On 9 January 2015, the complainant and his family filed an application for permanent residence on humanitarian and compassionate grounds. At the time of filing the State party’s observations, that application was still pending. In the assessment of an application for permanent residence on humanitarian and compassionate grounds, the decision maker considers the best interest of any child under 18 years of age who will be directly affected by the decision, taking into account the age of the child, the degree of his or her establishment in Canada, medical issues or other special needs of the child, among other factors. 4.13 The State party submits that an application for permanent residence on humanitarian and compassionate grounds is an effective domestic remedy available to anyone whose claim for protection has been denied.13 The State party regrets that, in its recent decisions, 14 the Committee has considered that applications for permanent residence on humanitarian and compassionate grounds are not remedies that must be exhausted for the purposes of admissibility. In the view of the Canadian authorities, it should not matter on which grounds a complainant is allowed to remain in Canada, when the result — protection from removal to the country where he or she alleges to be at risk — is the same. 4.14 Since filing their complaint with the Committee, the complainant and his family became eligible for a pre-removal risk assessment, for which they applied on 28 May 2015. They are now subject to a legislative stay of removal, pending the determination of the assessment. 4.15 The State party also notes that, in recent jurisprudence,15 the Committee referred to section 18.1 (4) of the Federal Courts Act, which sets out the grounds for judicial review, and observed that none of the grounds includes a “review on the merits” of the complainant’s claim that he or she would be tortured if returned to his or her country of origin. On that basis, the Committee accepted the complainants’ arguments that judicial review of negative decisions of the Immigration and Refugee Board or those of a preremoval risk assessment did not provide them with an effective remedy in the circumstances of their cases. The Committee also expressed the view that the State party should provide for “judicial review on the merits” of decisions to expel an individual where there are substantial grounds for believing that the person faces a risk of torture.16 4.16 The State party does not accept as a general proposition that its domestic system of judicial review, and in particular its Federal Court, does not provide an effective remedy against removal where there are substantial grounds for believing that a complainant faces a risk of torture. It considers that the Committee has misapprehended the nature of judicial review by the Federal Court, given that Canada’s current system of judicial review does provide for judicial review on the merits. 13 14 15 16 Reference is made to communication No. 66/1997, P.S.S. v. Canada, decision adopted on 13 November 1998, para. 6.2. Reference is made to communications No. 333/2007, T.I. v. Canada, decision adopted on 15 November 2010, paras. 6.3-6.4; and No. 343/2008, Kalonzo v. Canada, decision adopted on 18 May 2012, para. 8.3. Reference is made to communications No. 319/2007, Singh v. Canada, decision adopted on 30 May 2011, para. 8.8; and No. 520/2012, W.G.D. v. Canada, decision adopted on 26 November 2014, para. 7.3. See Singh v. Canada, para. 8.9. 7