opencaselaw.ch

CCPR/C/142/D/3618/2019

M.D. v. Canada

UNO-Menschenrechtsausschuss (CCPR) · 2024-11-07 · en UN

Inadmissibility decision; Subjects: CIVIL AND POLITICAL RIGHTS, CANADA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]

Volltext (verifizierbarer Originaltext)

GE.24-22405 (E) 131224 131224

Human Rights Committee

Decision adopted by the Committee under the Optional

Protocol, concerning communication No. 3618/2019*, **

Communication submitted by:

M.D. (represented by counsel, Viken Artinian)

Alleged victim:

The author

State party:

Canada

Date of communication:

24 May 2019 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 28 May 2019 (not issued in

document form)

Date of adoption of decision:

7 November 2024

Subject matter:

Deportation to Sri Lanka (non-refoulement)

Procedural issues:

Exhaustion of domestic remedies; lack of

substantiation

Substantive issue:

Freedom from torture or cruel, inhuman or

degrading treatment or punishment

Articles of the Covenant:

6 (1) and 7

Articles of the Optional Protocol:

2 and 5 (2)

1.1

The author of the communication is M.D., a national of Sri Lanka, born on 4 June

1987. He claims that the State party would violate his rights under articles 6 (1) and 7 of the

Covenant if it removed him to Sri Lanka, where he fears being subjected to inhuman and

degrading treatment due to his perceived links with the Liberation Tigers of Tamil Eelam.

The Optional Protocol entered into force for the State party on 19 May 1976. The author is

represented by counsel.

1.2

On 28 May 2019, pursuant to rule 94 of its rules of procedure, the Committee, acting

through its Special Rapporteurs on new communications and interim measures, requested the

State party to refrain from removing the author to his country of origin while his

communication was being considered. On 8 July 2021, the State party submitted a request to

* Adopted by the Committee at its 142nd session (14 October–7 November 2024).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly

Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah

Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu

United Nations

CCPR/C/142/D/3618/2019

International Covenant on

Civil and Political Rights

Distr.: General

13 December 2024

Original: English

CCPR/C/142/D/3618/2019

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GE.24-22405

lift interim measures since there was no real and personal risk of irreparable harm for the

author if returned to Sri Lanka.1

Facts as submitted by the author

2.1

The author is a Tamil, born in Jaffna, Sri Lanka, on 4 June 1987. He and his family

were arrested, detained, questioned and beaten by the Sri Lankan authorities several times.

2.2

On 24 June 2002, a pro-government group2 abducted the author’s father, K.D. The

author’s father was tortured and spent three weeks in the hospital after his release. In late July

2002, the author and his father were arrested by the police and detained and questioned for

two days because the police believed that they had a link with the Liberation Tigers of Tamil

Eelam. In May 2006, the author was again arrested and detained by the police for two weeks,

when the police questioned him to get information regarding other Liberation Tigers of Tamil

Eelam members. He was released after his father paid a bribe.

2.3

In October 2006, the author was arrested again and detained by the police for two

weeks before his uncle paid for his release. The author was again detained by the police in

November 2006 for a week but was released on the condition that he report when required.

In June 2007, the author was again arrested and detained for a week after a number of

Liberation Tigers of Tamil Eelam intelligence members were found in his neighbourhood.

He was questioned and kicked twice, as he was suspected of having a connection to the

Liberation Tigers of Tamil Eelam, but was released after his father paid a bribe. In July 2007,

the author was again detained by the police for a week, threatened and severely tortured.3 In

October 2008, the author’s entire family, including his elderly grandparents, was arrested by

the police after a bombing by the Liberation Tigers of Tamil Eelam in the suburbs of

Colombo, where the police alleged that they had found the author’s national identification

card.4 The police accused the author of helping the Liberation Tigers of Tamil Eelam and

detained him for nine months.5 During that time, the police kicked and punched the author,

beat him with sticks and poured hot water over his body. He was released in June 2009, after

his father paid a bribe of 500,000 rupees.6 In July 2009, the members of the pro-Government

Tamil Karuna faction abducted the author from his home, as he was accused of helping the

Liberation Tigers of Tamil Eelam. After six days of detention, he managed to escape. After

this incident, he fled Sri Lanka. The author provides photographs of the injuries on his feet

and legs inflicted by torture.7

2.4

Upon his arrival in Canada on 5 April 2012, the author applied for refugee protection.

His application for asylum before the Refugee Protection Division of the Immigration and

Refugee Board of Canada was rejected on 21 September 2015. The Board found that,

although the author’s testimony was consistent regarding his arrests, repeated detention and

torture, he was not personally targeted but was arrested during sweep arrests of Tamils in

general. It also found that there was no evidence, at that time, that he had participated in any

pro-Liberation Tigers of Tamil Eelam activity while in Canada. The author filed an

application for leave to initiate judicial review at the Federal Court against the Board’s

decision, which was denied on 12 July 2016, with no reason provided. Furthermore, the

author’s application for a pre-removal risk assessment was refused on 13 August 2018, as the

concerned officers found that the author could not establish that he would personally be at

risk if returned to Sri Lanka. The application for leave to appeal the negative pre-removal

1 The State party submitted that, given the author’s profile, he was not in the category of persons who

would be at significant risk of being monitored or otherwise targeted by the Sri Lankan authorities

upon his return.

2 No detailed information on this group has been provided by the author.

3 No further information about the alleged acts of torture have been provided.

4 The author alleged, however, that he was in possession of his identification card when he was

arrested.

5 His father was detained for 36 days, while the other family members were released the day after their

arrest. Evidence was submitted to prove the length of the detention period of the author’s father: the

Magistrate Court document ordering the release of his father in November 2018 and a detention

attestation by the International Committee of the Red Cross (annexed to the complaint).

6 Equivalent to $7,200.

7 The photographs prove that signs of torture are still visible.

CCPR/C/142/D/3618/2019

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risk assessment decision to the Federal Court of Canada was dismissed on 17 February 2019

and judicial review was denied on 1 March 2019, with no reason provided.

2.5

After a series of bomb explosions in Sri Lanka in April 2019, the brother and father

of the author were arrested by the Criminal Investigation Department, without arrest

warrants, under the Prevention of Terrorism Act on suspicion of a link with the Liberation

Tigers of Tamil Eelam. The author’s father was released, as he was elderly, but his brother

is still being detained. In May 2019, the author publicly participated in Tamil Genocide

Remembrance Day in Canada.

Complaint

3.1

The author claims that he would face persecution if returned to Sri Lanka for several

reasons: as a Tamil man from Northern Province, Sri Lanka, who bears torture scars; his past

detentions on suspicion of having links to the Liberation Tigers of Tamil Eelam; his

unsuccessful claims for refugee protection abroad; and his participation in the Tamil

Genocide Remembrance Day march in Canada in May 2019. Given the considerable risk of

persecution, including the risk to his life, the author claims that his removal would amount

to a violation of articles 6 (1) and 7 of the Covenant. In that regard, in his communication to

the Committee, he has alleged new evidence of risk, which he says was not assessed by the

domestic authorities.

3.2

The author asserts that the new evidence, which was not available at the time of either

the Immigration and Refugee Board of Canada or the Federal Court assessment, supports his

initial claims of risk. It consists of a letter from a Sri Lankan lawyer and a letter from a

member of Parliament of Sri Lanka confirming that the police arrested his father and brother

and that his brother was still detained for possible links to the Liberation Tigers of Tamil

Eelam. It is also stated in the letters that, while no specific arrest warrant had been issued for

the author, he was wanted for interrogation for possible links to or affiliation with the

Liberation Tigers of Tamil Eelam. In addition, the author submits photographs of his

participation in Tamil Genocide Remembrance Day in Canada in May 2019, which support

his alleged fears of possible future persecution in Sri Lanka.

3.3

Furthermore, the author asserts that Sri Lanka is dangerous for a young Tamil man

from Northern Province, Sri Lanka and, in particular, for him, as he was detained and tortured

in the past for perceived links with the Liberation Tigers of Tamil Eelam, leaving severe

torture scars on his body. In addition, the author’s family members are perceived by the

security forces as having links to the Liberation Tigers of Tamil Eelam. The author further

refers to a number of reports from non-governmental organizations and governmental

agencies to support the allegations set out above.8 The reports indicate that, upon their return

to Sri Lanka, Tamil asylum-seekers are regularly checked and interrogated at the airport by

the police or the Criminal Investigation Department, which often refer them to the State

Intelligence Service and the Terrorism Investigation Division. The reports indicate that the

situation of surveillance and torture of Tamils has been getting worse, including since the

new Government of Sri Lanka took office. They also indicate that the risk would be higher

for those who, like the author, were detained and tortured before their departure. The author

8 They include a report published in 2011 by Freedom from Torture; a report published in August 2016

by the United Kingdom of Great Britain and Northern Ireland, available at

https://www.ecoi.net/en/file/local/1116101/1226_1470833715_sri-lanka-tamil-separatism-v3-0.pdf; a

report published in 2015 by the United Kingdom entitled “Sri Lanka – country of concern”, available

at https://www.gov.uk/government/publications/sri-lanka-country-of-concern--2/sri-lanka-country-of-

concern; comments issued in February 2015 by the Immigration and Refugee Board of Canada,

available at http://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=455716&pls=1; a report

published in 2014 by Amnesty International entitled Ensuring Justice: Protecting Human Rights for

Sri Lanka’s Future, available at https://www.amnesty.org/en/documents/asa37/011/2014/en; a report

published in 2016 by Human Rights Watch, available at http://reliefweb.int/report/sri-lanka/sri-lanka-

events-2015; and a report on Sri Lanka published in January 2016 by the International Truth and

Justice Project.

CCPR/C/142/D/3618/2019

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also submits that the bombings of April 2019 in Sri Lanka, which killed over 250 people,

raised the tension between the Government and the Tamils in Sri Lanka.9

3.4

The author contends that he has exhausted all available domestic remedies. In addition,

the matter has not been submitted for examination under any other procedure of international

investigation or settlement.

State party’s request to suspend consideration of the communication and author’s

response

4.1

On 5 November 2019, the State party requested a suspension of consideration of the

communication until the domestic authorities had had an opportunity to assess and decide on

the author’s alleged new risks. The State party added that, as of 16 February, the author would

be eligible to apply for a second pre-removal risk assessment.

4.2

In a submission dated 28 February 2020, the author submits that no effective remedies

are available to him. First, the removal order has not been stayed and a stay of removal is

limited to extraordinary circumstances. Second, since the author was not notified, he could

not apply for a second pre-removal risk assessment, which, in any case, could not result in a

stay of removal order. Only a first pre-removal risk assessment, which was rejected in the

author’s case, can stay a deportation. Third, the application for judicial review at the Federal

Court of Canada of the refusal of the second pre-removal risk assessment would not stay the

deportation of the author either. In conclusion, and contrary to the State party’s contention,

there is no effective remedy available that could stay the author’s deportation. Finally, the

author requests that the interim measures stay in place until the Committee takes its decision

on the merits.

State party’s observations on admissibility and the merits

5.1

On 12 July 2021, the State party submitted its observations on admissibility and the

merits. It indicates that the author’s removal was temporarily deferred and that he remains in

Canada.

5.2

It argues that the author’s communication is inadmissible as he has failed to exhaust

all available domestic remedies and has not substantiated his allegations of risk.

5.3

The author failed to exhaust effective domestic remedies by failing to wait for a

decision on his request for an administrative deferral of removal of 27 May 2019; failing to

make an application for permanent residence on the basis of humanitarian and compassionate

grounds,10 to which he had been entitled since 12 July 2017; and failing to seek a regulatory

stay of removal. In that context, the author has not raised any objections to the humanitarian

and compassionate grounds process and has not argued that it would be ineffective or unfair

in his case. The author also failed to apply for a second pre-removal risk assessment, despite

his claim of new evidence of risk and despite the State party’s request to the Committee for

a suspension of consideration of his communication to allow the author to apply for the

second pre-removal risk assessment.

5.4

Overall, the author had access to multiple domestic proceedings, which he did not

pursue. His refugee claim was rejected by the Refugee Protection Division, and the Federal

Court did not interfere with that decision. By a decision of 13 August 2018, the pre-removal

risk assessment officer rejected the author’s application, which relied on the same facts as

alleged before the Refugee Protection Division. On 17 February 2019, the Federal Court

9 See https://www.aljazeera.com/news/2019/04/sri-lanka-bombings-latest-updates-

190421092621543.html.

10 The author became eligible to apply for permanent residence on humanitarian and compassionate

grounds on 12 July 2017, which the State party perceives as an effective remedy that has been

available to the author. The State party also referred to the Committee’s jurisprudence in Dastgir v.

Canada (CCPR/C/94/D/1578/2007), para. 6.2; and Khan v. Canada (CCPR/C/87/D/1302/2004),

para. 5.5. In that regard, the State party regretted the practice of the Committee and of the Committee

against Torture in some recent cases, in which the committees viewed the humanitarian and

compassionate grounds process as a remedy that did not need to be exhausted for the purposes of

admissibility.

CCPR/C/142/D/3618/2019

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dismissed the author’s application for leave to appeal. As a result of the negative pre-removal

risk assessment decision, the author’s conditional removal order became enforceable under

domestic law. On 27 May 2019, the author submitted a request for an administrative deferral

of removal to the Canada Border Services Agency. The author submitted the request shortly

after he submitted his communication to the Committee, however. The Committee granted

the author’s request for interim measures before the Agency had had time to consider his

request for a deferral of his removal. The State party also reiterates that the author failed to

file a second pre-removal risk assessment application, despite his claims of new evidence.

5.5

As to the author’s claims of new evidence of risk, which included the letters of support

from his Sri Lankan lawyer and of a member of Parliament from the Jaffna district and

photographs of torture injuries, such evidence should have been subjected to domestic review

to give the State party’s decision makers the opportunity to examine it first. In particular, the

author could have submitted requests for an administrative deferral of his removal and a

second pre-removal risk assessment application, both of which are effective remedies in the

author’s circumstances.

5.6

In addition, the author has not substantiated, even on a prima facie basis, his

allegations that he faces a real and personal risk to his life or of torture or cruel, inhuman or

degrading treatment or punishment. Therefore, his claims under articles 6 (1) and 7 of the

Covenant should be considered as manifestly unfounded. The State party, inter alia, argued

that the author lacked credibility, as some of the inaccurate or erroneous statements in his

communication as regards previous persecution might be the facts presented in a different

communication to the Committee by I.S., dated 1 March 2019.11 The author of the present

case has not substantiated his account of past experiences of persecution and serious harm in

Sri Lanka. The author’s new evidence does not substantiate his allegations of risk, and his

allegations about current country conditions are not substantiated either. The claims with

regard to torture scars, past detentions due to the links to the Liberation Tigers of Tamil

Eelam, the fact of being a failed asylum-seeker or attendance at the Tamil Genocide

Remembrance Day event in Canada do not support his fears of risk. Finally, the State party

argues that the Committee is not a tribunal of fourth instance.

5.7

Alternatively, the State party submits that the communication should be considered

without merit. The author’s claim that he fears persecution by the Sri Lankan authorities is

based largely on alleged encounters with the Sri Lankan police, which would have taken

place between 2002 and 2009, at a time when Sri Lanka was in a civil war. At most, the

author was targeted personally by the Sri Lankan authorities on only two occasions; on the

remaining five occasions, he was arrested and detained as part of general round-ups of Tamils.

The author was never charged with any criminal or terrorism-related offences and was always

released from detention. In addition, he was able to leave Sri Lanka using his own passport,

which indicates that the Sri Lankan authorities had no serious concerns regarding any

potential links to the Liberation Tigers of Tamil Eelam. Furthermore, the author’s claims that

he would face persecution if returned to Sri Lanka because of his profile and personal

characteristics are not supported by objective reports on the current country conditions. The

State party reiterates that the author has not presented sufficient credible evidence that

demonstrates that he faces a real and personal risk of death, torture or cruel, inhuman or

degrading treatment of punishment if returned to Sri Lanka.

5.8

The State party requests that the Committee consider the admissibility and merits of

the communication at its earliest convenience.

Author’s comments on the State party’s observations

6.1

On 10 July 2023, the author submitted his comments on the State party’s observations.

He asserts, contrary to the State party’s assessment, that the country conditions have

worsened for perceived members of the Liberation Tigers of Tamil Eelam such as the author,

who was detained by the Sri Lankan authorities in the past for suspected links to the

organization. His detention was not put into doubt by the Refugee Protection Division of the

Immigration and Refugee Board nor any court of the State party.

11 I.S. v. Canada (CCPR/C/137/D/3315/2019). The same counsel has represented both authors.

CCPR/C/142/D/3618/2019

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GE.24-22405

6.2

The last procedure before the State party’s authorities dates to 2019. Although the

author is now under a spousal sponsorship,12 it has no effect in terms of on stopping his

deportation to Sri Lanka. The only reason that the author has not been removed is that the

State party respected the Committee’s request for interim measures to halt the author’s

removal. The author therefore requested the Committee to maintain the interim measures

while his case was being examined by the Committee.

6.3

Referring to the background reports, the author submits that some Tamils with

imputed links to the Liberation Tigers of Tamil Eelam, including those who fought for the

organization or were part of its civilian administration, continue to report being subjected to

police monitoring and harassment.13 As for returnees, in a report14 of the Immigration and

Refugee Board on Sri Lanka, it is stated that a fact-finding mission report of the Home Office

of the United Kingdom of Great Britain and Northern Ireland indicates that, according to a

peacebuilding and human rights organization, anyone returning from abroad after failing to

obtain asylum would be questioned harshly, but that, without providing further detail, the

situation had improved for returnees, as the Government of Sri Lanka knows that other

countries are monitoring the situation.

6.4

The fact that the Sri Lankan authorities have continued to approach the author’s family

to determine his whereabouts and to verify if or when he would return and the continued

harassment of his family members, as attested by the affidavit that he submitted to the

Committee, are supported by the documentary evidence, which gives credence to the author’s

allegations. A 2022 report by the Home Office on the general treatment of Tamils also

confirms the above and corroborates that the situation for Tamils, especially those who are

perceived to have or have had any links to the Liberation Tigers of Tamil Eelam, has

worsened.15

6.5

The author has also claims that since the Sinhala nationalist Government took power

in November 2019 it has adopted discriminatory policies and practices against the country’s

Muslim and Tamil minorities.16 He claims that Tamils and Muslims are increasingly being

marginalized and excluded from the national vision and government policy, while divisive

and discriminatory rhetoric by State officials at the highest levels risks generating further

polarization and violence.17 Throughout the country, especially in the north and east, Tamils

have reported that the members of their community have been regularly monitored and

harassed by the security forces.18 The author also makes reference to the disproportionately

high number of military checkpoints in Northern Province and complaints of discriminatory

treatment or harassment during security checks.19 Finally, the Prevention of Terrorism Act,

enacted in 1979, remains legally in force and contains special provisions on detention and

the admissibility of confessions. The Act was also recently used against Tamils. 20

Asylum-seekers are viewed as having undermined or shamed the country, and returnees who

have sought asylum are viewed as traitors. There is resentment and antipathy towards both

Tamil refugees and Tamil asylum-seekers as the Government believes that they have aired

12 A form of temporary residence pending application for permanent residence.

13 See Immigration and Refugee Board of Canada, “Sri Lanka: treatment of Tamil citizens, including

suspected members or supporters of the Liberation Tigers of Tamil Eelam (LTTE); treatment of non-

Tamil supporters of the LTTE by the Government (2017–August 2020)”, 17 August 2020, available

at https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=458148&pls=1.

14 See https://www.refworld.org/docid/5aa92d344.html.

15 https://www.gov.uk/government/publications/sri-lanka-country-policy-and-information-

notes/country-policy-and-information-note-tamil-separatism-sri-lanka-august-2022-accessible-

version#exit_return.

16 See Human Rights Watch, World Report 2021 (2021).

17 A/HRC/46/20, para. 53.

18 See United States of America Department of State, 2021 Country Reports on Human Rights

Practices: Sri Lanka.

19 A/HRC/49/9, para. 16.

20 See Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report Sri

Lanka (2021).

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negative views about Sri Lanka and its Government abroad. Upon return to Sri Lanka, Tamils

face more scrutiny, especially those who are failed asylum-seekers.21

6.6

The author argues that his communication should be considered on the merits due to

the evidence in support of his fears of the personal and real risks of persecution or other

ill-treatment if removed to Sri Lanka. Such evidence runs counter to the State party’s request

to lift interim measures in the present case. The author recalls that the new evidence, which

corroborates the risk to the author’s life and of detention and torture by the Sri Lankan

authorities, was never assessed by the State party’s asylum authorities nor any domestic court.

Therefore, the Committee’s request to halt the author’s deportation is the only remedy left to

the author until a decision on the merits is rendered.

6.7

In attachment to his comments, the author has submitted a copy of his application for

permanent residence made under the Spouse or Common-Law Partner in Canada Class, dated

29 June 2023, which was being processed at the time. After the initial screening, the

authorities determined that the author met the eligibility requirements to apply for permanent

residence as a member of the Spouse or Common-Law Partner in Canada Class. A final

decision would not be made, however, until all remaining requirements for becoming a

permanent resident had been met, including medical and security checks for the author and

his family members.

6.8

The author also provided to the Committee a letter, dated 3 July 2023, in which he

attests to the release of his brother from detention in 2021 against the payment of a bribe to

the Sri Lankan authorities and the fact that his brother’s whereabouts remain unknown,22 that

the police continue to come to the family house asking about the author and his brother, as

indicated by the author’s father, that the author’s father is afraid to provide an updated

affidavit and that the author still fears returning to Sri Lanka, where he would be arrested and

tortured by the Sri Lankan authorities, who act with complete impunity.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

7.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

7.3

The Committee notes the author’s statement that he has exhausted all available

domestic remedies. The author’s application for asylum before the Immigration and Refugee

Board was rejected on 21 September 2015 and his application for leave to request judicial

review by the Federal Court against the Board’s decision was denied on 12 July 2016. The

Committee also observes that the author’s application for a pre-removal risk assessment was

rejected on 13 August 2018 and that his application for leave to appeal the negative

preremoval risk assessment decision to the Federal Court was rejected on 17 February 2019.

The Committee nonetheless notes the State party’s objection that the author has not exhausted

all available domestic remedies, as he has been eligible for a second pre-removal risk

assessment since 16 February 2020, in particular as he alleged new evidence of risk if

removed to Sri Lanka, which has not been considered by the domestic authorities.

7.4

The Committee recalls its jurisprudence to the effect that authors must avail

themselves of all domestic remedies in order to fulfil the requirements of article 5 (2) (b) of

21 See Federal Court of Canada, Sathanantharajan v. Canada (Citizenship and Immigration),

2020 FC 512, decision of 14 April 2020, para. 34. See also https://www.irb-cisr.gc.ca/en/country-

information/rir/Pages/index.aspx?doc=458595&pls=1.

22 The author suspects that his brother might have been killed.

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the Optional Protocol, insofar as such remedies appear to be effective in the given case and

are de facto available to the author.23

7.5

The Committee observes the author’s submission of 28 February 2020 that there are

no effective remedies available to him. He argues that the removal order has not been stayed

and that a stay of removal is limited to extraordinary circumstances, that since he was not

notified, he could not apply for a second pre-removal risk assessment, which does not result

in a stay of removal order anyway, as only the first pre-removal risk assessment, which was

rejected, stays a deportation, and that the application for a judicial review by the Federal

Court of Canada of the refusal of a second pre-removal risk assessment would not stay the

deportation of the author either.

7.6

The Committee also observes the State party’s additional arguments that the author

failed to exhaust available domestic remedies, as he submitted a request for an administrative

deferral of his removal on 27 May 2019, after the submission of the present communication,

and he failed to await a decision thereon. The State party adds that the author did not apply

for permanent residence on the basis of humanitarian and compassionate grounds24 and the

author did not seek a regulatory stay of his removal. The State party further argues that the

author did not raise any objections to the humanitarian and compassionate process and did

not allege that it would be ineffective or unfair. The State party reiterates that the author also

failed to apply for a second pre-removal risk assessment, despite his claim of new evidence

of risk and the State party’s subsequent request to the Committee for a suspension of

consideration of his communication to allow the author to apply for the second pre-removal

risk assessment. Overall, the State party argues that the author had access to multiple

domestic proceedings and that he resorted twice to the Federal Court of Canada. The

Committee notes, however, that the author has not submitted further comments to dispel the

State party’s arguments as to the additional remedies available to him. In the light of the

above, the Committee considers that the timely application for administrative deferral of the

author’s removal, a request for a regulatory stay of removal and an application for a second

pre-removal risk assessment, given the claims of new evidence of risk, could have

represented effective remedies available to the author had he decided to avail himself of them

in order to stay his removal. In that connection, the Committee recalls its jurisprudence that

doubts about the effectiveness of domestic remedies do not absolve authors from exhausting

such remedies.25

7.7

In addition, the Committee notes the State party’s argument that the new evidence

submitted by the author to the Committee in support of the present communication has never

been presented to the national asylum authorities or the courts, and that the State party did

not have a chance to consider the alleged new evidence first. The Committee recalls its

jurisprudence, according to which the requirement of exhaustion of domestic remedies,

which allows the State party to remedy an alleged violation before the same issue is raised

before the Committee, obliges authors to raise the substance of the issues submitted to the

Committee before domestic courts.26 Therefore, the Committee considers that, in failing to

raise his claims based on the alleged new evidence before the national asylum authorities or

courts, the author has failed to exhaust domestic remedies, and declares these claims

inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.

7.8

In the light of the above finding, the Committee will not consider separately the other

grounds of inadmissibility raised by the State party.27

23 H.S. et al. v. Canada (CCPR/C/125/D/2948/2017), para. 6.3. See also Timmer v. Netherlands

(CCPR/C/111/D/2097/2011), para. 6.3.

24 M.B. v. Canada (CCPR/C/128/D/2957/2017), para. 7.3.

25 Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.6.

26 Tarlue v. Canada (CCPR/C/95/D/1551/2007), para. 7.5; and S.D.P.T., Y.F.R.T. and P.T. v. Canada

(CCPR/C/125/D/2034/2011), para. 11.4.

27 S.J. v. Canada (CCPR/C/127/D/2732/2016), para. 6.4.

CCPR/C/142/D/3618/2019

GE.24-22405

9

8.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 5 (2) (b) of the Optional

Protocol;

(b)

That the present decision shall be transmitted to the State party and to the

author.