CAT/C/65/D/784/2016 cannot apply for permanent residence on humanitarian and compassionate grounds within 12 months of a negative decision by the Refugee Protection Division. Since her application for asylum was rejected by the Division on 30 March 2016, and the Federal Court dismissed her application for a judicial review of the negative decision by the Division on 25 August 2016, the complainant was not eligible to apply for permanent residence. The Department of Immigration, Refugees and Citizenship Canada notified the complainant of the negative decision by email on 28 February 2017. The State party submits that 12 months have passed since the complainant’s application has been rejected and she is therefore eligible to submit a new application for permanent residence on humanitarian and compassionate grounds to the Department. The State party, nonetheless, observes that the complainant has not done so. 4.3 Second, the State party considers that the complainant also failed to apply for a preremoval risk assessment. The State party recalls that persons in Canada, other than protected persons or persons who are recognized as “Convention refugees” by another country to which they may be returned, may apply for such an assessment if they are subject to an enforceable removal order. 13 A person may apply for protection to the Minister within 15 days after notification of the removal decision. 14 The State party recalls that the assessment is conducted by specialized, independent and impartial officers who are under the authority of Citizenship and Immigration Canada. 15 The officers conducting the assessment determine whether the removal would expose the applicant to a risk of persecution as defined in the Convention on the Status of Refugees, to the danger of torture, to the risk of death or to being subjected to cruel or inhuman treatment or punishment if returned to their country of origin. 16 According to the findings of the assessment, the officers may decide whether the applicant is a Convention refugee or a person in need of protection. The State party submits that the complainant has been eligible to apply for a pre-removal risk assessment since 29 March 2017, but has not done so. The State party also submits that if the Committee agreed to lift the interim measures, as requested by Canada, the Canada Border Services Agency could start the procedures to notify the complainant of her entitlement to apply for an assessment. The State party notes that, had she submitted the application for an assessment, her removal order would be subject to a stay of removal. The State party, however, notes that, pursuant to article 113 of the Immigration and Refugee Protection Act, an applicant whose claim for refugee protection has been rejected may present, in the context of an application for an assessment, only new evidence that arose after the rejection or which was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The complainant would therefore be requested to present new evidence of a personal risk to the officers charged with any assessment. The State party further submits that the complainant could apply for leave to seek judicial review of the decision before the Federal Court of Canada in case of rejection of an application for assessment. 17 Besides, the State party notes the views of the Committee in the case Aung v. Canada wherein it considered that the complainant, whose application for a pre-removal risk assessment was being processed by the Canadian authorities and who was granted a stay of removal, did not exhaust a remedy which was both available and effective. 18 The State party also recalls the views of the Committee in the case B.M.S v. Sweden, in which it considered that the communication was inadmissible for non-exhaustion of domestic remedies, as the decision regarding the complainant’s expulsion became statute-barred and therefore not enforceable, the complainant was no longer under a threat of being expelled to his country of origin, and there still existed an effective alternative remedy locally as he could submit a new asylum application and appeal negative decisions thereon. 19 The State party also recalls that, in the case L.Z.B v. Canada, the Committee found that the complainants did not exhaust domestic 13 14 15 16 17 18 19 4 See the Immigration and Refugee Protection Act, art. 112. Ibid. As from 2016, Citizenship and Immigration Canada became known as Immigration, Refugees and Citizenship Canada. Ibid., arts. 96, 97 and 98. Ibid., art. 72. See Aung v. Canada (CAT/C/36/D/273/2005), para 6.4. See B.M.S v. Sweden (CAT/C/49/D/437/2010), para. 6.2. GE.19-05767