CCPR/C/112/D/2243/2013 Appendix [Original: English] Joint opinion of Committee members Yuval Shany and Dheerujlall B. Seetulsingh (dissenting) 1. We do not agree with the majority’s conclusion that the communication is admissible, since we believe that the author failed to exhaust legal remedies before approaching the Committee. Although the majority is correct in noting that the State party has not formally invoked article 5, paragraph 2(b), of the Optional Protocol, it is up to the Committee to ascertain that the author has exhausted all available domestic remedies, even if the State party has not explicitly raised the matter on its own. 2. In the circumstances of the present case, the State party has taken, in effect, the view that section 50 of the Aliens Act constitutes an effective remedy, since it allows the author to request an additional review of his expulsion decision, where several years have passed since the previous review under the same section. It also asserted that the author may raise, in the context of such a request for additional review, a claim of material change in his personal circumstances. In formulating this legal position, the State party relied on the purpose of section 50, which seeks to facilitate consideration of the deported individual’s circumstances shortly before the deportation, as well as on a decision by the Danish Supreme Court in another case (case No. 194/2009 of 30 May 2011), which alluded to the possibility of holding new section 50 hearings before deportation, in circumstances where a decision to suspend a deportation is lifted. In such hearings, the Supreme Court suggested that the contemporary personal circumstances of the individual whose deportation is sought may be considered. 3. Since the author challenged the State party’s interpretation of section 50, and has refrained from seeking an additional review of his case pursuant to it, the Committee is faced with conflicting claims about the effectiveness of a domestic remedy. In such a situation, it has long been the position of the Committee that “mere doubts about the effectiveness of local remedies or the prospect of financial costs involved did not absolve an author from pursuing such remedies”. a This implies that whenever a State party invites the author of a communication to invoke a certain legal remedy, the Committee would expect the author to establish its ineffectiveness in order to justify his/her failure to exhaust it. In the present case, we regard the State party’s interpretation of section 50 to be plausible in the light of its specific purpose and given the support afforded to this interpretation by the Supreme Court judgement of 30 May 2011. At the same time, we find the author’s reasons for not even attempting to try to initiate section 50 proceedings, despite being invited to do so by the State party, to be unclear and unconvincing. As a result, we would have held that the author failed to show that he had exhausted all available and effective local remedies, as required under article 5, paragraph 2 (b) of the Optional Protocol. 4. Ultimately, the majority held that “removing the author and separating his children from their father without reviewing these new personal circumstances would amount to a violation of article 23, paragraph 1, read in conjunction with article 24 of the Covenant” (para. 9.6), and instructed the State party to “provide the author with an effective remedy by proceeding to a review of the decision to expel him with a permanent re-entry ban, taking a Human Rights Committee, communication No. 560/1993, A. v. Australia, Views adopted on 3 April 1997, para. 6.4. 17