CAT/C/39/D/304/2006 Page 9 Issues and proceedings before the Committee Consideration of admissibility 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, as it is required to do under article 22, paragraph 5 (a), that the same matter has not been and is not being examined under another procedure of international investigation or settlement. 6.2 In accordance with article 22, paragraph 5 (b), of the Convention, the Committee must ascertain that the complainant has exhausted all available domestic remedies; this rule does not apply where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the alleged victim. 6.3 The Committee notes that the State party contests the admissibility of the complaint on the grounds that domestic remedies have not been exhausted. The complainants have replied that they did exhaust all effective domestic remedies: they applied for asylum and following the rejection of their application requested judicial review in the Federal Court, which denied their request. They then applied for PRRA and filed for residence on humanitarian grounds, both of which applications were also rejected. Lastly, they applied for administrative stay to halt their removal. 6.4 Firstly, as to the denial of the complainants’ request for a review of their case on humanitarian grounds, the Committee recalls9 that, at its twenty-fifth session, in its final observations on the report of the State party, it considered the question of requests for ministerial stays on humanitarian grounds. It expressed particular concern at the apparent lack of independence of the civil servants deciding on such “appeals”, and at the possibility that a person could be expelled while an application for review was under way. It concluded that those considerations could detract from effective protection of the rights covered by article 3, paragraph 1, of the Convention. It observed that, although the right to assistance on humanitarian grounds is a remedy under the law, such assistance is granted by a minister on the basis of purely humanitarian criteria, and not on a legal basis, and is thus ex gratia in nature. The Committee has also observed that when judicial review is granted, the Federal Court returns the file to the body which took the original decision or to another decisionmaking body and does not itself conduct a review of the case or hand down any decision. The decision depends, rather, on the discretionary authority of a minister and thus of the executive. The Committee adds that, since an appeal on humanitarian grounds is not a remedy that must be exhausted to satisfy the requirement for exhaustion of domestic remedies, the question of an appeal against such a decision does not arise. 9 See Falcon Rios v. Canada, communication No. 133/1999, decision of 23 November 2004, paras. 7.3-7.4.