CAT/C/29/D/119/1998
page 7
Federal Court of Canada. An application for a judicial review to show that a person runs a real
risk of being tortured in the country to which the authorities wish to return him therefore has no
chance of success.
5.6
According to the complainant, the remedies to be exhausted are those which make it
possible to establish, where appropriate, the violation of the right invoked. Thus, the application
for asylum and the ensuing application for a judicial review, notwithstanding the doubt as to its
effectiveness, as discussed above, are remedies that, in the complainant’s view, have to be
exhausted. By contrast, the complainant maintains that the application for humanitarian status
and any ensuing application for a judicial review are not remedies which must be exhausted
because, even if, in some cases, it is justified to make use of extraordinary remedies, this cannot
be the rule for an entirely discretionary remedy such as the application for humanitarian status.
The complainant refers in this connection to C. Amerasinghe (Local Remedies in International
Law, p. 63), according to whom it is not necessary to make use of an extraordinary remedy if it
is only discretionary and non-judicial, as in the case of those whose purpose is to obtain a favour
and not to claim a right. Now, it has been established, and is not contested by the State party,
that the purpose of the application for humanitarian status is not to secure a right, but, rather, to
obtain a favour from the Canadian State; this point has, moreover, been emphasized on many
occasions by the Federal Court.
5.7
Applications for a judicial review of discretionary decisions like those following a
request for humanitarian status are no more effective, even when the Federal Court examines the
merits of the case. The complainant illustrates this contention with reference to a similar case,
where the decision on an application for humanitarian status had been the subject of a judicial
review in which the Federal Court had found that the person concerned was indeed at risk of
being subjected to torture or inhuman or degrading treatment. Being unable to take a final
decision in such a proceeding, however, the Federal Court had had to refer the case back to the
administrative authority, which took a new decision that was contrary to the Federal Court’s
findings and refused to grant humanitarian status. The complainant considers that the fiction of
the judicial review is thereby demonstrated all the more clearly.
5.8
Deeming that he has shown the inadequacy and ineffectiveness of the remedies which he
is reproached with not having employed, the complainant then submits to the Committee his
contention that the State party has not assumed the burden of proof necessary for it to establish
that effective domestic remedies are still available. He refers in this connection to the case law
of the Inter-American Court of Human Rights in the Velásquez Rodríguez v. Honduras case,
according to which it is for the State which contests the exhaustion of all remedies to prove that
there are remedies still to be exhausted and that those remedies are effective. The complainant,
therefore suggests that the Inter-American Court of Human Rights has transferred the burden of
proof of the exhaustion of all remedies from the complainant to the State. He observes that this
is also the case law applied by the Human Rights Committee, which requests the State, in
addition to giving details of the remedies available, to provide evidence that there is a reasonable
chance of those remedies being effective. In the complainant’s view, that should also be the
approach of the Committee against Torture.