CAT/C/29/D/119/1998
page 6
State party refers in addition to the Committee’s decision in the L. O. v. Canada case
(CAT/C/24/D/95/1997) concerning the absence of a request for humanitarian status.
4.6
Referring lastly to the case law of the European Court of Human Rights, the State party
argues that a judicial review is an effective remedy within the meaning of article 13 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms and
that, even in cases where the complainant might be subjected to inhuman or degrading
treatment if returned to his country, he must observe the formalities and time limits of the
domestic procedures before turning to an international body (Bahaddar v. Netherlands,
No. 145/1996/764/965, 19 February 1998).
4.7
The State party concludes that, for these various reasons, the Committee should declare
the present complaint inadmissible on the ground of non-exhaustion of domestic remedies.
Comments by the complainant
5.1
In a letter dated 27 October 2000, the complainant submitted his comments regarding the
State party’s observations on the admissibility of the complaint.
5.2
The complainant maintains first of all that he availed himself of the opportunity to apply
for a judicial review of the decision by which he was denied refugee status, that being the last
remedy in all of the proceedings which he had pursued, and had addressed the very substance of
the claims made in support of his request for asylum. The subsequent appeals and remedies had
concerned only matters of procedure.
5.3
The complainant also states that his application for a judicial review of the decision
rejecting the PDRCC application was based on the same arguments as that which could have
been made against the decision on his humanitarian status and points out that the two
proceedings were concurrent. He therefore considers that applying for a judicial review of the
decision on his humanitarian status would have made little sense because the Federal Court
would certainly not have decided otherwise than in the other proceeding.
5.4
The procedure to include a person in the “Post-Determination Refugee Claimants in
Canada” (PDRCC) class and the request for humanitarian status are not, according to the
complainant, valid remedies in international law because they are entirely discretionary.
Likewise, judicial reviews made where applicable by the Federal Court are also not valid under
international law because they cannot give rise to a final decision and the case must be referred
back to the administrative authorities for a new decision. Furthermore, following its consistent
practice, the Federal Court deals not with questions of fact, which are to be determined entirely
at the discretion of the administrative authorities, but only with the observance of such principles
as must guide the administrative proceedings.
5.5
The complainant refers in this connection to the reasons why domestic remedies must be
exhausted under article 22 of the Convention. He submits that the domestic remedies to be
exhausted cannot be incapable of offering any chance of success. This applies, according to the
complainant, to the judicial review in question, since the practice whereby the review deals only
with matters of procedure and not with the facts or the law is particularly well established in the