Complainant’s comments
the Federal Court on the standard of “reasonableness
simpliciter”, which means that the ‘discretion’ is far
from absolute.
5.1 On 12 February 2006 counsel commented on
the State party’s observations. She notes that the
complainant submitted his humanitarian and
compassionate application on 17 January 2006.
Further, on 27 January 2006 the Federal Court
granted the judicial review and remitted the PRRA
application to be determined by a new officer. New
PRRA submissions were due on 17 March 2006.
4.5 The State party challenges the Committee’s
reasoning in Falcon Ríos to the effect “that the
principle of exhaustion of domestic remedies
requires the petitioner to use remedies that are
directly related to the risk of torture in the country to
which he would be sent, not those that might allow
him to stay where he is.”13 The State party argues
that article 3 of the Convention obliges States not to
expel, return or extradite a person to another State
where there are substantial grounds for believing that
he would be in danger of being subjected to torture.
If an individual is permitted to stay in Canada, it
follows that he will not be returned to the country
where he alleges to be at risk. It should not matter on
what grounds a person is not removed.14 The State
party invokes the Committee’s decision in A.R. v.
Sweden 15 where it was determined that an
application for a residence permit, which could be
based on humanitarian grounds but which could be
decided on the grounds of a risk of torture was a
remedy required to be exhausted for the purposes of
admissibility. The State party argues that since a
humanitarian and compassionate application may
also be based and approved on the ground of risk the
person may face in the country to which he would be
returned, it meets the requirements set out by the
Committee.
5.2 The complainant argues that the PRRA is not
an effective remedy for purposes of admissibility.16
Although PRRA officers may be considered to be
specially trained, they are not experts when it comes
to official documents such as warrants or summons
for arrests and do make erroneous findings in such
regard. The fact that, in the present case, such an
error occurred during the first PRRA is evidence that
such findings are not an effective remedy for those
facing arrest in countries such as Myanmar. The
complainant further submits that although he is now
subject to a new PRRA assessment, he cannot be
sure that the new PRRA officer will not make the
same erroneous finding in respect of the warrant and
the risk. For this reason, counsel argues that the
Committee should declare the communication
admissible. In the alternative, should the Committee
find that the communication is inadmissible, the
Committee should suspend its decision until the new
PRRA determination has been made.
Issues and proceedings before the Committee
4.6 Secondly, since the complainant is not in
immediate danger of removal, the communication is
also inadmissible under article 22, paragraph 2, of
the Convention and rule 107 (c) of the rules of
procedure, as incompatible with article 3 of the
Convention, and is manifestly unfounded under rule
107 (b) of the rules of procedure.
6.1 Before considering any of the allegations in a
communication, the Committee against Torture must
decide whether or not the communication is
admissible under article 22 of the Convention. The
Committee has ascertained that the same matter has
not been and is not being examined under another
procedure of international investigation or settlement.
4.7 On 10 February 2006 the State party informed
the Committee that the author’s judicial review
application was granted on 27 January 2006.
Pending the completion of the new PRRA, the
complainant will have the benefit of a statutory stay
of removal, and is therefore not presently at risk of
removal to Myanmar. Therefore, the communication
is inadmissible on the basis of non-exhaustion of
domestic remedies.
6.2 In accordance with article 22, paragraph 5 (b),
of the Convention, the Committee does not consider
any communication 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 the remedies has
been unreasonably prolonged, or that it is unlikely,
after a fair trial, to bring effective relief to the
alleged victim.
6.3 The Committee takes note of the State party’s
contention that the complaint should be declared
inadmissible under article 22, paragraph 5 (b), of the
Convention since domestic remedies have not been
exhausted, and since the complainant was granted a
stay of removal and is not currently at risk of being
deported. The Committee notes that the
13
Communication N° 133/1999, Falcon Ríos v. Canada,
Views adopted on 23 November 2004, para. 7.4.
14
The State party refers to T.I. v. United Kingdom (App.
N° 43844/98, Reports of Judgements and Decisions, 2000III, paras. 458–459), where the European Court of Human
Rights was concerned with whether there were
“procedural safeguards of any kind” protecting the
applicant from removal.
15
Communication N° 170/2000, A.R. v. Sweden,
inadmissibility decision of 23 November 2001, para. 7.2.
16
Referring to communication 232/2003, M.M. v. Canada,
admissibility decision of 7 November 2005.
10
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