CAT/C/64/D/615/2014 not even go to the funeral of her mother in Uganda 6 due to the continuing threats from the father of her daughter, and because her family in Uganda told her that it would be unsafe for her to come. 3.3 The complainant claims that she has exhausted available domestic remedies in Canada. She argues that her application to the Federal Court for judicial review is not an effective remedy as it does not stop or delay the deportation in the majority of cases. She also refers to the Committee’s jurisprudence in Nirmal Singh v. Canada (CAT/C/46/D/319/2007, para. 8.8), in which the Committee considered that the judicial review of a negative refugee protection decision or a pre-removal risk assessment decision does not provide an effective remedy. State party’s observations on admissibility and the merits 4.1 On 7 August 2015, the State party submitted observations on admissibility and the merits of the communication. 4.2 As regards the admissibility of the case, the State party submits that the communication is inadmissible on two grounds. First, the State party considers that the complainant failed to exhaust domestic remedies, as she did not apply to the Refugee Protection Division for refugee status or protection. The State party recalls that the Division is an independent, quasi-judicial, specialized tribunal that considers applications by foreign nationals seeking the protection of Canada based on fear of persecution, torture or other serious violations of human rights if they were removed to their country of origin. The Division determines whether the complainant is a “person in need of protection” under section 97 of the Immigration and Refugee Protection Act, which mandates the protection of persons who face a real risk of torture within the meaning of article 1 of the Convention in case of a removal from Canada. A person who falls within the definition of a “person in need of protection” has a statutory right under section 115 of the Act not to be removed. The State party submits that the complainant has not explained to the Committee why she did not seek protection from the Refugee Protection Division. The State party admits that the complainant was not eligible to apply to the Division for protection once the removal order had been issued against her on 1 June 2011; however, she had previously been eligible and failed to do so. Since the complainant did not apply to the Division for protection, the State party considers that the complainant’s argumentation and behaviour are inconsistent with her alleged fear of torture or ill-treatment if returned to her country of origin. 4.3 Furthermore, the State party observes that the complainant did not apply for permanent residence on humanitarian and compassionate grounds. It submits that, if the complainant had applied for permanent residence from outside of Canada, she could have been allowed to remain in Canada as a permanent resident, depending on the assessment by Citizenship and Immigration Canada as to whether she would suffer unusual, undeserved or disproportionate hardship.7 The State party recalls that, following legislative changes to the national refugee system in 2010, applications on humanitarian and compassionate grounds no longer have to be based on a risk to life or a risk of torture; 8 instead, they should substantiate whether a claimant would directly and personally experience unusual, undeserved or disproportionate hardship in the complainant’s country of origin. The State party hence regrets the Committee’s decisions in Kalonzo v. Canada (CAT/C/48/D/343/2008) and T.I. v. Canada (CAT/C/45/D/333/2007), in which the Committee considered that applications on humanitarian and compassionate grounds were not remedies that had to be exhausted for the purpose of admissibility. The State party 6 7 8 4 The date of the funeral was not specified. Citizenship and Immigration Canada also considers that the best interests of the child may directly affect such a decision. See Immigration and Refugee Protection Act, sect. 25 (1.3): “In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97 (1) but must consider elements related to the hardships that affect the foreign national.”

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