Advance unedited version CAT/C/65/D/756/2016
6.3
The Committee takes note of the State party’s observation that the complainant has
failed to exhaust the available domestic remedies because he did not appeal the AAT decision
to the Federal Circuit Court and then to the Federal Court of Australia. The Committee as
well notes the complainant’s response that he obtained an oral opinion from a barrister who
was taking care of his case, that an appeal to the Federal Circuit Court would not have a
reasonable prospect of success. The Committee also notes the complainant’s statement that
in view of section 486I of the Migration Act it would be illegal to proceed with the appeal in
such situation. Without an intent to interpret the provisions of the domestic legislation, the
Committee notes, that section 486I of the Migration Act does not prevent a lawyer from
submitting a case to the Federal Circuit Court, if the lawyer certifies in writing that there are
reasonable grounds for believing that the case has a reasonable prospect of success. There is
nothing in the section’s wording to suggest that an appeal submitted in good faith could be
considered illegal.3 In the present case it seems that the complainant’s lawyer did not believe
that there was a reasonable prospect of success and thus did not submit an appeal on behalf
of the complainant to the Federal Circuit Court. In other words, it was rather the personal
view of the lawyer than the lack of effectiveness of the remedy, which prevented the
complainant from exhausting the domestic remedies. The complainant does not provide
information on whether he tried to find a different lawyer who would agree to defend his
case, including a State-appointed lawyer. The Committee recalls its consistent jurisprudence
that mere doubt about the effectiveness of a remedy does not dispense with the obligation to
exhaust it.4 The Committee further notes that the information provided by the parties does
not indicate that the complainant was represented by a State-appointed lawyer and recalls its
jurisprudence that errors made by a privately retained lawyer cannot normally be attributed
to the State party.5 In these circumstances, the Committee finds that the complainant has
failed to exhaust domestic remedies available to him, as required by article 22(5)(b) in the
sense that there were remedies, both available and effective, which the complainant has not
exhausted.
6.4
In the light of this finding, the Committee does not deem it necessary to examine any
other inadmissibility grounds.
7.
The Committee therefore decides:
(a)
That the communication is inadmissible under article 22 (5) (b) of the Convention;
(b)
That the present decision shall be communicated to the complainant and to the State
party.
3
4
5
The Committee notes that it has received numerous submissions from the counsel in the present case
who has not previously claimed that access to judicial review in migration cases is restricted, in
particular by section 486I of the Migration Act.
See e.g. communications E.S. v Canada (CAT/C/63/D/621/2014), para 6.7 and S.S. and P.S. v
Canada (CAT/C/62/D/702/2015), para. 6.5.
See e.g. communications J.S. v. Canada (CAT/C/62/D/695/2015), para. 7.5, and R.S.A.N. v. Canada
(CAT/C/37/D/284/2006), para. 6.4.
5