4. By submission of 16 October 1995, the State party challenges the
admissibility of the communication. It explains that under chapter 2, section
5, of the Aliens Act, an alien who is to be refused entry or expelled can
apply for a residence permit if the application is based on circumstances that
have not previously been examined in the case and if the enforcement of the
decision on refusal of entry or expulsion will be in conflict with
humanitarian requirements. The State party emphasizes that new
circumstances cannot ex officio be assessed by the immigration authorities,
but only following a so-called "new application". The State party notes that
the medical evidence invoked by the author in support of her
communication has not previously been submitted to the Swedish
immigration authorities, so that neither the Swedish Immigration Board nor
the Aliens Appeal Board has had the opportunity to assess it. Considering
that a "new application" may be lodged at any time and that the relevant
requirements have recently been relaxed, the State party submits that
domestic remedies have not been exhausted in the present case.
5. By submission of 10 November 1995, counsel claims that a "new
application" under chapter 2, section 5, of the Aliens Act would not be
successful. In this connection, she points out that an application has to be
based on new circumstances not previously considered and that only 5 per
cent of "new applications" succeed. Since the author's request for asylum
was refused on the basis that the situation in Zaire had improved, she argues
that a "new application" on the basis of the new medical evidence would be
rejected on the same grounds.
6. Before considering any claim in a communication, the Committee against
Torture must decide whether or not it is admissible under article 22 of the
Convention.
7. Article 22, paragraph 5 (b), of the Convention precludes the Committee
from considering any communication, unless it has ascertained that all
available domestic remedies have been exhausted; this rule does not apply if
it is established that the application of domestic remedies has been or would
be unreasonably prolonged or would be unlikely to bring effective relief. In
the circumstances of the instant case, the Committee considers that the
Swedish domestic authorities should have an opportunity to evaluate the
new evidence submitted by the author, before the Committee examines the
communication. Moreover, on the basis of the information available, the
Committee cannot conclude that the available remedy of a "new application"
would be a priori ineffective.
8. The Committee therefore decides:
(a) That the communication is inadmissible;