CAT/C/68/D/568/2013 State party’s observations on admissibility and the merits 4.1 In its observations on admissibility and the merits dated 12 June 2014, the State party recalls the facts of the complaint and explains how the Refugee Protection Division assesses claims for refugee status under the Immigration and Refugee Protection Act. During the hearing before the Refugee Protection Division, the complainant was represented by counsel and could provide documentary evidence and oral testimony. He had the opportunity to explain any omissions or inconsistencies in his evidence and to respond to any questions that the Refugee Protection Division had with regard to his claim. The Refugee Protection Division rejected the complainant’s application and the Federal Court of Canada denied his application for leave to seek judicial review. 4.2 As for the complainant’s application for humanitarian and compassionate considerations, such assessments consist of a broad, discretionary review to determine whether a person should be granted permanent residence for such reasons. The test is whether the complainant would suffer unusual and undeserved or disproportionate hardship if required to apply for permanent residence from outside Canada. The decision maker considers and weighs all the relevant evidence and information, including the complainant’s written submissions. Decisions on humanitarian and compassionate grounds are subject to judicial review by the Federal Court. 4.3 Individuals subject to a removal order and who have not yet had a determination of their pre-removal risk assessments are notified that they may apply for such an assessment once their removal becomes operationally possible. If a first application for a pre-removal risk assessment is filed within 15 days of receiving the notification, the removal order is stayed while the application is being assessed. Although the complainant was, at the time of submission of the State party’s observations, subject to a removal order, his removal was not imminent then. 4.4 Applications for pre-removal risk assessments are assessed by officers who are specially trained to assess risks and to consider the Canadian Charter of Rights and Freedoms and international human rights obligations relating to refugee protection. Where the Refugee Protection Division has already assessed a person’s claim, a pre-removal risk assessment evaluates whether new facts, developments or evidence since the determination by the Division indicate a risk of persecution or torture, a risk to life or a risk of cruel and unusual treatment or punishment. Decisions on pre-removal risk assessments may, with leave, be judicially reviewed by the Federal Court. A judicial stay of removal pending the disposition of that application or the disposition of any application for judicial review of the decision may also be available. 4.5 The present complaint is inadmissible due to the complainant’s failure to exhaust domestic remedies. In particular, at the time of submission of the State party’s observations, no decision had yet been reached on the complainant’s application for humanitarian and compassionate considerations. Although an administrative stay of expulsion is not available in the procedure to assess humanitarian and compassionate considerations, an application for judicial stay may be made pending the determination of the application for such considerations. The Committee has previously held that the possibility of lodging an application for humanitarian and compassionate considerations was among the domestic processes available to bring effective relief. 4 Furthermore, the complainant could apply for a pre-removal risk assessment once he received notification that he may do so. Also, it is possible to seek leave to apply for judicial review of a pre-removal risk assessment or decision on humanitarian and compassionate considerations, which the Committee has consistently recognized as a procedure that must be exhausted for the purpose of admissibility. 5 The Committee has considered past cases inadmissible in cases in which eligibility for a new risk assessment is reached after the complaint is filed. 6 It has also held that a pre-removal risk assessment application providing for a statutory stay of removal pending its consideration constituted an available and effective remedy. 7 Moreover, it 4 5 6 7 P.S.S. v. Canada (CAT/C/21/D/66/1997), para. 6.2. Yassin v. Canada (CAT/C/43/D/307/2006), paras. 9.3–9.4; L.Z.B. and J.F.Z. v. Canada (CAT/C/39/D/304/2006), para. 6.6; P.S.S. v. Canada, para. 6.2; and P.S. v. Canada (CAT/C/23/D/86/1997), para. 6.2. B.M.S. v. Sweden (CAT/C/49/D/437/2010), para. 6.2. Aung v. Canada (CAT/C/36/D/273/2005), paras. 6.3–6.4. 5