CCPR/C/116/D/2314/2013
Appendix
Individual opinion of Committee member Dheerujlall Seetulsingh
(dissenting)
1.
The State party asserts most forcefully in paragraph 4.2, as set out in the Views of
the majority, that the author has not exhausted local remedies and that he still has the
opportunity of obtaining an effective remedy under humanitarian and compassionate
grounds. The State party enlarges the scope of remedies regarding applications for refugee
status by calling the humanitarian and compassionate application “an effective remedy that
offers a reasonable prospect of redress … in cases where an applicant would suffer an
unusual and undeserved hardship”.
2.
The State party goes as far as to regret that the Human Rights Committee has in the
past adopted Views that humanitarian and compassionate applications “are not remedies
that should be exhausted for admissibility purposes”. The stand taken by the majority of the
Committee at para. 6.3 in its Views is that the humanitarian and compassionate application
“does not shield the author from deportation to Sri Lanka and therefore cannot be described
as offering him an effective remedy”.
3.
In this particular case, where the majority finds a non-violation, the stand taken by
the majority weakens the chances of the author in a prospective humanitarian and
compassionate application. It is true that the author himself, because of the previous Views
of the Committee, claims that he has exhausted local remedies so as to render his
communication admissible under the Optional Protocol. However, in the general context of
Canadian law and the rules of procedure in relation to applications for permanent residence
and in the particular circumstances of the present case, where the State party is taking a
very open, generous and liberal stand, the author’s Communication should have been
considered inadmissible, thereby enabling the author to make a humanitarian and
compassionate application.
4.
Our Committee is a Human Rights Committee and not a Court of Appeal or a quasijudicial body. It need not in all circumstances always be bound by previous Views. It has
the discretion and the flexibility to vary its findings, basing itself on the specific
circumstances of each case and a constantly changing situation, especially as regards
applications for refugee status, while reinforcing the rights to protection enshrined in the
Covenant and adhering strictly to the principles applicable under the Optional Protocol as to
exhaustion of local remedies. At paragraph 4.2, the State party takes the stand that it would
not object to an application by the author for a judicial stay of removal pending the
outcome of the assessment of a humanitarian and compassionate application, if any. The
State party even mentions the grounds the author may rely upon, that is, a demonstration of
his family ties in Canada and the hardship he may suffer in Sri Lanka.
5.
I am of the view that the State party, having demonstrated clearly its willingness to
do so, should allow the author to make a humanitarian and compassionate application if he
wishes to proceed with such an application.
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