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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