CCPR/C/119/D/2613/2015 United Nations High Commissioner for Refugees (UNHCR) in its 2016 guidelines for assessing asylum claims from El Salvador.43 5.17 Regarding the State party’s argument that police protection is available, the author reiterates his concern that the measures adopted by El Salvador to address gang activity are not effective. He submits that the State party has failed to challenge the author’s evidence that the Government of El Salvador is unable to protect him and his family. The author also refers to the above-mentioned 2016 guidelines of UNHCR regarding the ability and willingness of the Government to provide protection, in which “it is reported that the police … are usually not seen as offering a sufficient form of protection for those residents who are threatened by gangs, since their presence is only temporary and the gangs will return once the police move on after a few hours or days”.44 5.18 The author further claims that State party’s obligations under articles 6 and 7 do not allow for a national security exception. He refers to the Views of the Committee against Torture in Sogi v. Canada, explaining that the legal principles against removing individuals to countries where they face a real risk to life or of cruel, inhuman or degrading treatment are non-derogable.45 He claims that, regardless of the threats he may or may not pose to national security, the State party cannot remove him to El Salvador in the light of the risks posed by removal. 5.19 Regarding his allegations under article 2 (3) of the Covenant, the author acknowledges that his initial communication was not sufficiently detailed. In that connection, he submits that, as the pre-removal risk assessment proceedings amounted to a denial of justice, the State party failed to provide an effective remedy to the alleged violations. He further submits that the assessment decision was marred by serious and numerous errors of fact and law, including an arbitrary approach when considering the submitted evidence. He therefore considers that he has been a victim of a violation of his rights under article 2 (3), read in conjunction with articles 6, 7, 9, 17 and 23 (1), of the Covenant. Additional observations by the State party on the admissibility and the merits 6.1 On 22 June 2016, the State party submitted additional observations on the admissibility and merits of the communication and reiterated its request to lift the interim measures. It maintains that the author’s communication is inadmissible because he has failed to exhaust domestic remedies and his allegations are not sufficiently substantiated. The State party also maintains that, in the alternative, the communication is without merit. 6.2 The State party reiterates that requesting an administrative deferral of removal from the Canada Border Services Agency is an effective and timely remedy that offers a reasonable prospect of redress and must therefore be exhausted for the purposes of admissibility. It argues that the author’s argument that the Agency is limited to new evidence of personal risk arising in the period after his negative pre-removal risk assessment is an overly narrow description of this remedy. It refers to Atawnah v. Canada, in which the Federal Court of Appeal held that an enforcement officer is not limited to an assessment of new risk arisen since the last assessment and has broader discretion to defer removal than previously described in case law. 46 A requirement to defer removal may 43 44 45 46 See UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of AsylumSeekers from El Salvador” (2016), p. 45. “Considering the small territorial size of El Salvador, and given the ability of the gangs … to operate country-wide … a viable [internal flight or relocation alternative] is unlikely to be available to individuals at risk of being pursued by such [non-State] actors. It is particularly important to note the operational capacity of certain organized structures, particularly the MS … to carry out attacks in any part of El Salvador.” Available from www.refworld.org/docid/56e706e94.html. Ibid., p. 24. See Committee against Torture communication No. 297/2006, Sogi v. Canada, Views adopted on 16 November 2007, para. 10.2. See Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, para. 15. 11