Further State party’s admissibility observations to India while his communication is under consideration by the Committee. 6.1 In a further submission dated 9 October 1998, the State party contends that upon receiving a decision like that of the adjudicator in the instant case, a refugee claimant represented by counsel would not have assumed that he could proceed with his refugee claim. The adjudicator determined that the author was a person who had been convicted outside of Canada of an offence that if committed in Canada would constitute an offence punishable by a maximum term of imprisonment of 10 years or more and was also a person for whom there were reasonable grounds to believe had engaged in terrorism. A reasonable person represented by counsel receiving such a determination would have anticipated that action would be taken to have the individual excluded from the refugee determination process. Indeed, such a determination would suggest that the claimant might be excluded from the definition of a Convention refugee in section F of article 1 of the Convention relating to the Status of Refugees, which was incorporated by reference into the Canadian Immigration Act. 8.2 In its response, the State party indicates that an interim measures request is a recommendation to a State to take certain measures, not an order. Support for this proposition may be found not only in the word employed (“request”) in rule 108, paragraph 9, but also in the European Court of Human Rights judgement in Cruz Varas and Others v. Sweden. The Court stated the following with respect to the legal status of an interim measures request: “Firstly, it must be observed that rule 36 [regarding interim measures] has only the status of a rule of procedure drawn up by the Commission ... In the absence of a provision in the Convention for interim measures an indication given under rule 36 cannot be considered to give rise to a binding obligation on Contracting Parties.” 8.3 Pursuant to rule 108, paragraph 9, an interim measures request may be issued in order to avoid “irreparable damage” to an author. The State party submits that the examination of possible irreparable harm should be a rigorous one, particularly when the individual concerned was found to represent a danger to the public or, as in the author’s case, whose continued presence in the State was determined to be contrary to the public interest. On the basis of the documentary evidence submitted by the author as well as their own evidence regarding the author’s risk upon removal to India, the authorities concluded that the risk was minimal. Moreover, a judge of the Federal Court Trial Division determined that the risk to the author was not sufficient to justify a stay of his removal. 6.2 Moreover, the author had been advised, subsequent to the first inquiry held, that CIC intended to seek the Minister’s opinion that the author constituted a danger to the public, the consequence upon issuance of such opinion being that he would be excluded from the refugee determination process. The author sought judicial review of this earlier determination and was therefore aware of the potential consequences of an adjudicator’s finding that he was inadmissible. Counsel’s comments 8.4 The Government of Canada first became aware that the petitioner had submitted a communication, including a request for interim measures, when the author’s counsel alluded to the Committee’s granting of the request during a discussion with a CIC official on 18 December 1997, three months after the Committee had received the author’s communication and request for interim measures. The record before the Committee reveals that the interim measures request was issued, after several appeals by the author’s counsel to the Committee, a few days before his scheduled removal. The Government of Canada was not aware of these appeals nor was it given the opportunity to comment on these ex parte communications with the Committee. 7. Counsel argues that the adjudicator’s finding was very specific (i.e., that the author had been convicted of an offence and that there were reasonable grounds to believe he had engaged in acts of terrorism). The scope for judicial review of such a finding is limited to whether the adjudicator made an error in law or whether his findings of fact were perverse, capricious or patently unreasonable. Whether or not the author agreed with the decision, it was not possible to attack it on any of these grounds based on the evidence presented. Counsel’s duty is to determine whether it is in the client’s best interest to pursue an appeal when there is little merit in doing so. Counsel would hesitate to launch a frivolous application before the courts simply to delay further proceedings. 8.5 In summary, irrespective of their legal status, interim measures requests received from the Committee are given serious consideration by the State party. However, the State party determined that the present case was not an appropriate one for a stay to be granted in light of the above-mentioned factors and in particular: (a) the prima facie absence State party’s comments on the failure to observe the Committee’s interim measures request 8.1 On 24 June 1998, the Committee invited the State party to submit written comments on the failure to observe the request not to expel the author 55