CCPR/C/119/D/2613/2015 5.3 Referring to Canada v. Shpati, the author explains that the review by the Canada Border Services Agency is limited to any new evidence of personal risk not previously assessed.34 The author alleges that the Agency officer would assume the findings of the 2015 pre-removal risk assessment decision to be correct, and any risk assessment would be limited to new evidence arising between the 40-day period after receiving the negative assessment decision on 20 April 2015 and the date when the removal order was to be executed, on 30 May 2015. Referencing the Committee’s jurisprudence in Muhonen v. Finland,35 the author claims that the limited scope of the request to defer removal makes it an ineffective remedy. 5.4 The author also submits that the deferral of removal is temporary and does not impact the underlying removal order.36 In Canada v. Shpati, the Federal Court of Appeal explained that both the primary statutory duty to remove and the language chosen by Parliament to confine enforcement officers’ discretion indicate that the range is relatively narrow. Their functions are limited, and deferrals are intended to be temporary. Enforcement officers are not intended to make, or to remake, pre-removal risk assessments or humanitarian and compassionate decisions. 37 5.5 The author indicates that the purpose of a deferral of removal is to suspend temporarily the removal to allow the foreign national to adduce evidence in a pre-removal risk assessment that demonstrates the risk to life or of cruel and “unusual” punishment. He further indicates that this is not a right of appeal of a negative assessment decision that would allow for the findings of the assessment to be impugned. The author claims that, in his circumstances, considering that negative assessment and humanitarian and compassionate decisions have already been rendered and that there is no new evidence, a deferral of removal can no longer be justified. 5.6 The author also claims that the deferral of removal is a discretionary remedy applied by a Canada Border Services Agency officer and not a judicial remedy. He refers to the case of Arhuaco v. Colombia, in which the Committee explained that the term “domestic remedies” must be understood as referring primarily to judicial remedies. 38 He submits that the seriousness of the risk to his life requires a review by an independent and impartial tribunal, empowered to assess the risks that he faces in its totality and not merely on the basis of new evidence over the 40-day period between the pre-removal risk assessment refusal and the scheduled removal. 5.7 As regards his allegations under article 9, the author claims that the State party fails to address the full extent of the violations of his right to security of the person that would result from his removal. The author refers to general comment No. 35 on liberty and security of person, in which the Committee explains that the right to personal security also obliges States parties to take appropriate measures in response to death threats against persons in the public sphere, and more generally to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors. 39 5.8 The author submits that the State party’s argument — that the protection afforded by the Covenant in the context of the removal of a foreign national does not extend beyond articles 6 and 7 — misreads general comment No. 31 and are not consistent with views 34 35 36 37 38 39 The Federal Court of Appeal stated that “The enforcement officer noted that the Board, and the preremoval risk assessment and [humanitarian and compassionate] officers, had already assessed risk and found that he was not a refugee or a person in need of protection. And, since the officer was not satisfied that any new or personalized risk exists, the allegations of risk on return did not warrant deferring Mr. Shpati’s removal … When, as in the present appeal, an officer is requested to defer removal after a negative [pre-removal risk assessment], any risk relied on must have arisen after the [assessment]”. See Canada v. Shpati (footnote 27 above), paras. 16 and 44. See communication No. 89/1981, Muhonen v. Finland, Views adopted on 8 April 1985, para. 6.1. See communication No. 1763/2008, Pillai et al. v. Canada, Views adopted on 25 March 2011, para. 5. See Canada v. Shpati (footnote 27 above), para. 45. See communication No. 612/1995, Vicente et al., v. Colombia, Views adopted on 29 July 2007, para. 5.3. See general comment No. 35 (2014), on liberty and security of person, para. 9. 9