CAT/C/23/D/121/1998
page 6
cases not yet before the courts, asking the court to order the administration to defer the
deportation of the asylum-seeker. An injunction may be granted if the plaintiff can demonstrate
that the challenged decision will probably be annulled when the main case is to be adjudicated.
In the case under consideration, the fax dated 16 September 1998 by which the Ministry
informed the author that stay would not be granted cannot be interpreted as if the Ministry would
carry out the deportation even if the author had brought his case before the court. Moreover, the
author did not indicate that he intended to bring the case to court.
4.3
Since 1987 more than 150 cases concerning the legality of decisions denying asylum
have been brought before Norwegian courts. A majority of those cases have contained a request
for injunction. Courts have their own power to order a stay. If an applicant demonstrates that
the requirements for injunction are fulfilled, the Ministry cannot go ahead with the deportation
and is bound to obey the court. Experience shows that the Ministry itself, in the majority of
asylum cases brought before the courts, decides administratively to stay its decision until the
court of first instance, following an oral hearing, decides on the request for injunction.
4.4
The State party also refers to the author’s claim that his financial situation does not
permit him to go to court. Even if that is the case, the argument cannot serve to make the
requirement of article 22 (5) (b) of the Convention inoperative. The wording of the provision is
clear and does not allow for this defence. Furthermore, the State party notes that the author is
indeed represented by counsel before the Committee.
4.5
In cases like the one under consideration, national courts are better placed than
international bodies to assess evidence. This is especially so when it comes to the hearing of
parties and witnesses on questions of reliability and truthfulness. In court oral testimony will be
subject to examination by both parties and possibly the court itself. Such a procedure is not
undertaken by the Committee. The facts of the case as they emerge from the documents are
complex and detailed. Details have to be understood in the light of oral testimony presented in
court. The requirement of exhaustion of local remedies is therefore even more compelling.
Counsel’s comments
5.
Counsel claims that the Ministry of Justice tends not to allow asylum-seekers to stay in
the country while they prepare a judicial complaint or while the court examines their case. He
refers to the statement by the State party according to which more than 150 cases concerning the
legality of decisions denying asylum have been brought before Norwegian courts and argues
that 150 cases in 12 years is a rather low figure, which demonstrates how difficult it is to have
access to the courts. Finally, he claims that the author was unable to raise funds in order to bring
his case before the courts.
Additional information submitted by the State party
6.1
By an additional submission dated 29 October 1999, the State party informs the
Committee that according to the Immigration Act, an asylum-seeker has right to free legal advice
in relation to the administrative proceedings. This right is limited to five hours of a lawyer’s
time in relation to the application in the first administrative instance and an additional three