5.2 It is submitted that requests for a ministerial waiver on humanitarian and
compassionate grounds and post-determination review are handled by the
same persons or persons at the same level in the same department. As a
result, without new evidence, it is obvious that the decision will be the same.
5.3 At the Federal Court level, the same argument applies: leave having
been denied for judicial review of the post-determination refusal, it could
not be granted on exactly the same facts and the same points of law at a later
stage.
5.4 The author underlines the illusory nature of the humanitarian and
compassionate review when the Federal Court has already dealt with the
issues of substance. As a consequence, and given the constant jurisprudence
of the Federal Court of Canada, there is no recourse left with any real
chance of success and the case clearly falls within the exception of article
22, paragraph 5 (b), of the Convention.
Issues and proceedings before the Committee
6.1 The Committee wishes to emphasize that although it had requested the
State party, under rule 108 (9) of its rules of procedure, not to remove the
author while his communication was pending before it, the State party was
informed too late co comply with the request. The removal took place
almost a month before the transmission of the communication.
6.2 Before considering any claims contained in a communication, the
Committee must decide whether or not it is admissible under article 22 of
the Convention. The Committee has ascertained, as it is required to do under
article 22, paragraph 5 (a), of the Convention, that the same matter has not
been and is not being examined under another procedure of international
investigation or settlement. It also notes that the communication is not an
abuse of the right of submission of such communications or incompatible
with the provisions of the Convention.
6.3 As regards the exhaustion of domestic remedies, the Committee has
taken note of the observations by the State party and by the author's counsel.
Pursuant to article 22, paragraph 5 (b), of the Convention, the Committee is
precluded from considering any communication unless it has been
ascertained that all available domestic remedies have been exhausted; this
rule does not however 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 to the presumed victim.