CAT/C/66/D/749/2016
custodial sentence for corruption, as Y would perceive the complainant to be a further
threat to his already embattled status and would try to “silence” him.
Further submission of the State party
6.
On 15 November 2018, the State party reiterated its position on admissibility and the
merits of the case. It stated that the complainant’s comments did not contain any new
information to alter the State party’s initial assessment.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any complaint submitted in a communication, the Committee
must decide whether it is admissible under article 22 of the Convention. The Committee
has ascertained, as it is required to do under article 22 (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.
7.2
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention,
it shall not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. This rule does not apply where it
has been established that the application of those remedies has been unreasonably
prolonged or is unlikely to bring effective relief. 3
7.3
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 decision of
the Refugee Review Tribunal to the Federal Circuit Court and then, potentially, to the
Federal Court and the High Court of Australia. The Committee also notes the complainant’s
response that a barrister involved in his case considered that an appeal to the Federal Circuit
Court would not have a reasonable prospect of success and that, in the light of section 486I
of the Migration Act, he had to withdraw his appeal. Referring to its jurisprudence, the
Committee notes that there is nothing in section 486I of the Migration Act to suggest that
an appeal submitted in good faith will not be considered. 4 In the present case, it was the
personal conclusion of the lawyer rather than the lack of effectiveness of the remedy that
prevented the complainant from exhausting domestic remedies. The Committee recalls its
consistent jurisprudence that mere doubt about the effectiveness of a remedy does not
dispense with the obligation to exhaust it. 5 The complainant does not provide information
on whether he tried to find a different lawyer to defend his case, including a Stateappointed lawyer, or whether he could have presented his appeal himself, without counsel,
instead of withdrawing it. The Committee 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. 6 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) of the Convention, in that there were remedies, both available and effective,
which the complainant has not exhausted.
7.4
In the light of this finding, the Committee does not deem it necessary to examine
any other grounds of inadmissibility.
3
4
5
6
GE.19-14946
See, for example, E.Y. v. Canada (CAT/C/43/D/307/2006/Rev.1), para. 9.2. See also the Committee’s
general comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of
article 22, para. 34.
See, for example, T.T.P. v. Australia (CAT/C/65/D/756/2016), para. 6.3.
See, for example, Shodeinde 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, for example, J.S. v. Canada (CAT/C/62/D/695/2015), para. 6.5; and R.S.A.N. v. Canada
(CAT/C/37/D/284/2006), para. 6.4.
5