State party's observations on admissibility
4.1 In a submission dated 9 November 1998, the State party submitted that
the communication was inadmissible for failure to exhaust domestic
remedies as required by article 22, paragraph 5 (b), of the Convention and
rule 91 of the Committee's rules of procedure.
4.2 The State party underlines that it is a fundamental principle of
international law that domestic remedies must be exhaust before remedy
from an international body may be sought. This principle gives the State an
opportunity to correct internally any wrong that may have been committed
before the State's international responsibility is engaged.
4.3 The State party argues that the author has failed to seek ministerial
exemption on humanitarian and compassionate grounds under subsection
114 (2) of the Canadian Immigration Act and section 2.1 of its Immigration
Regulations. This remedy would have enabled the author to apply to the
Minister on Immigration and Citizenship at any time for an exemption from
the requirements of the immigration legislation or for admission to Canada
on compassionate or humanitarian grounds. In this regard, the State party
refers to the jurisprudence of the Committee in its decision K. v.
Canada (communication No. 42/1996, 25 November 1997), where the
author had been deemed not to have exhausted domestic remedies since he
had not lodged a request for a ministerial waiver for humanitarian and
compassionate grounds.
4.4 The State party also refers to the author's claim that the judicial review
by the Federal Court of Canada has no suspensive effect and therefore
entitles the State party to deport the applicant while the Federal Court is
deciding whether such removal is legal. It emphasizes that in these cases
there is a possibility to make an application to the Federal Court for an
interim order staying removal while the decision is pending before the
Court. The criteria that are applied by the Federal Court in granting such
interim orders are: (a) the seriousness of the issue raised by the author; (b)
the irreparable harm suffered by the author in case of removal; and (c) when
the balance of convenience favours the order.
Counsel's comments
5.1 The author maintains that he has exhausted all available domestic
remedies before submitting his communication. He alleges that it is illusory
to believe that the ministerial review for humanitarian reasons, based solely
on the risk of return, would be treated differently that the post-determination
review.

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