Canada’ risk assessment, which had been considered as an effective remedy by the Human Rights Committee. 4 In the view of the State party, the Committee’s decision in Falcon Ríos was based on the erroneous finding of fact that in the PRRA application in that case “it would only be any fresh evidence that would be taken into consideration, and otherwise the application would be rejected.”5 It is correct that pursuant to section 113 (a) of the IRPA “an application whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection”. However, the State party highlights that an exception has been read in by the Federal Court for those applicants whose claims for refugee protection had been rejected prior to the coming into force of the IRPA.6 PRRA applications are considered by specially trained officers, trained to consider provisions of the Canadian Charter of Rights and Freedoms as well as of international human rights treaties. Further, the State party submits, contrary to the Committee’s jurisprudence,7 that PRRA officers are independent and impartial, referring to the jurisprudence of the Federal Court of Canada.8 Further, PRRA is said to be a remedy governed by statutory criteria for protection, conducted pursuant to a highly regulated process and in accordance with extensive and detailed guidelines. It is subject to judicial review, and there is no authority for the proposition that a discretionary remedy cannot be an effective remedy, for purposes of admissibility.9 4.3 Further, the complainant has not yet filed an application on the basis of humanitarian and compassionate considerations, which the State party maintains would also be an available and effective domestic remedy. The assessment of a humanitarian and compassionate application, under section 25 of the IRPA, consists of a broad, discretionary review by an officer who determines whether a person should be granted permanent residence in Canada for humanitarian and compassionate reasons. The test is whether the person would suffer unusual, underserved or disproportionate hardship if he had to apply for a permanent resident visa from outside Canada. The assessing officer considers all the relevant information, including the person’s written submissions. A humanitarian and compassionate application can be based on allegations of risk, in which case the officer assesses the risk the person may face in the country to which he would be returned. Included in the assessment are considerations of the risk of being subjected to unduly harsh or inhumane treatment, as well as current country conditions. In the event that such an application is granted, the person receives permanent residency subject to medical and security screening which can eventually lead to Canadian citizenship. 4.4 For the State party, the humanitarian and compassionate consideration application is also an effective remedy which should be exhausted, contrary to the Committee’s jurisprudence. 10 The State party argues that the simple fact that a remedy is discretionary does not necessarily mean that it is not effective. 11 It invokes a judgement of the European Court of Human Rights in which the court determined that a discretionary remedy available to unsuccessful refugee claimants in Germany to prevent removal to a substantial risk of torture was adequate to fulfil Germany’s obligations under article 3 of the European Convention on Human Rights.12 Furthermore, while the decision adopted in humanitarian and compassionate applications is technically discretionary, it is in fact guided by defined standards and procedures and must be exercised in a manner consistent with the Canadian Charter of Rights and Freedoms and Canada’s international obligations. In the event that the application is refused, the person can make an application for leave to apply for judicial review to 4 The State party refers to communication N° 604/1994, Nartey v. Canada, inadmissibility decision of 18 July 1997, para. 6.2; communication N° 603/1994, Badu v. Canada, inadmissibility decision of 18 July 1997, para. 6.2; communication 654/1995, Adu v. Canada, inadmissibility decision of 18 July 1997, para. 6.2. 5 Communication N° 133/1999, Falcon Ríos v. Canada, Views adopted on 23 November 2004, para. 7.5. 6 The State party refers to Nikolayeva v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 708; Cortez v. Canada (Minister of Citizenship and Immigration), 2003 FCT 725. 7 The State party refers to communication N° 232/2003, M.M. v. Canada, admissibility decision of 7 November 2005, para. 6.4. 8 Say v. Canada (Solicitor General), 2005, FC 739. The State party also refers to numerous Canadian Federal Court cases. 9 T.I. v. United Kingdom, App. N° 43844/98, Reports of Judgements and Decisions, 2000-III; communication N° 250/2004, A.H. v. Sweden, inadmissibility decision of 15 November 2005. The State party also refers to communication N° 939/2000, Dupuy v. Canada, inadmissibility decision of 18 March 2005, para. 7.3 (HRC), concerning the effectiveness of judicial review of an application for mercy to the Minister of Justice. 10 The State party refers, inter alia, to communication N° 133/1999, Falcon Ríos v. Canada, Views adopted on 23 November 2004, para. 7.3. 11 The State party refers to communication N° 169/2000, G.S.B. v. Canada, discontinued by letter of the Committee dated 25 November 2005, in which a failed refugee’s humanitarian and compassionate consideration application was granted. 12 T.I. v. United Kingdom, App. N° 43844/98, Reports of Judgements and Decisions, 2000-III, para. 460. 9