CAT/C/62/D/715/2015
of India to another must register with the local police: a procedure that the complainant, as
a victim of torture at the hands of the police in the past and a person currently of interest to
them, dare not complete.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention,
it shall not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. This rule does not apply where it
has been established that the application of those remedies has been unreasonably
prolonged or is unlikely to bring effective relief. 14
6.3
The Committee notes the State party’s observation that the complainant did not file
requests for judicial review of the decision concerning pre-removal risk assessment, of the
decision concerning his application for permanent residence based on humanitarian and
compassionate grounds and of the refusal to defer his deportation. The Committee reiterates
its jurisprudence that the humanitarian and compassionate application is not an effective
remedy for the purposes of admissibility pursuant to article 22 (5) (b) of the Convention
given its discretionary and non-judicial nature and the fact that it does not stay the removal
of a complainant. 15 Accordingly, the Committee does not consider it necessary for the
complainant to exhaust the judicial review of the humanitarian and compassionate
proceedings for the purpose of admissibility.
6.4
As for complainant’s failure to apply for leave to seek a judicial review of the preremoval risk assessment decision, the Committee notes the State party’s argument that the
pre-removal risk assessment decision may be judicially reviewed by the Canadian Federal
Court with leave and a judicial stay of removal pending the final decision may also be
available. From the information available to it on file, the Committee observes that,
according to Section 18.1 (4) of the Federal Courts Act, a judicial review of a pre-removal
risk assessment decision by the Federal Court is not limited to errors of law and mere
procedural flaws and that the Court may look at the substance of a case. The Committee
also observes that the complainant has not put forward arguments substantiating his
allegation that a judicial review of the pre-removal risk assessment decision is not an
effective remedy. He merely argues that this procedure is very expensive and ineffective
since the chances of success are low. In this regard, the Committee recalls that the mere
doubt about the effectiveness of a remedy does not dispense a complainant from the
obligation to exhaust it and that the Federal Court may, in appropriate cases, look at the
substance of a case.16 Accordingly, the Committee considers that, in the circumstances of
the present case, the complainant has failed to exhaust all available domestic remedies since
he did not file an application for judicial review of the pre-removal risk assessment decision
before the Federal Court.
6.5
The Committee recalls that, for a claim to be admissible under article 22 (2) of the
Convention and rule 113 (b) of its rules of procedure, it must rise to the basic level of
substantiation required for purposes of admissibility. 17 The Committee notes the State
party’s argument that the communication is manifestly unfounded owing to a lack of
14
15
16
17
6
See, inter alia, E.Y. v. Canada (CAT/C/43/D/307/2006/Rev.1), para. 9.2.
See J.M. v. Canada (CAT/C/60/D/699/2015), para. 6.2; A v. Canada (CAT/C/57/D/583/2014), para.
6.2; W.G.D. v. Canada (CAT/C/53/D/520/2012), para. 7.4; and J.S. v. Canada
(CAT/C/62/D/695/2015) para. 7.3.
See, for example, Aung. v. Canada (CAT/C/36/D/273/2005/Rev.1), para. 6.3; and S.S. and P.S. v.
Canada (CAT/C/62/D/702/2015), para. 6.5.
See, inter alia, Z. v. Denmark (CAT/C/55/D/555/2013), para. 6.3.