CCPR/C/116/D/2327/2014
communication before the Committee has become moot and is hence inadmissible under
article 1 of the Optional Protocol.
4.2
The State party further considers that the author’s claims under articles 9 (1) and 26
of the Covenant are inadmissible under article 3 of the Optional Protocol because these
provisions have no extraterritorial application. Any alleged risks to the author’s security
should only be considered as part of the assessment of her complaint in relation to articles 6
and 7.
Author’s comments on the State party’s observations
5.1
In her comments dated 25 July 2014, the author asserts that the PRRA process is not
an effective remedy because only 2-3 per cent of such applications are successful.
5.2
The author also maintains that eligibility for residency on H&C grounds depends not
only on the hardship that the applicant would face upon return to the country of origin, but
also on the degree to which the applicant is established in Canada. Because she is
“presently dealing with psychological issues and had difficulty obtaining employment”,
which is an important step in proving that she is established in Canada, she has chosen to
wait until she is able to present a stronger and more effective H&C application.
Furthermore, because removal is not automatically stayed during the processing of an H&C
application, it is not an available and effective remedy.
5.3
With regard to the issue of the extraterritorial application of article 9 (1) of the
Covenant, the author submits that the Committee should follow the admissibility approach
set forth in its Views on communication No. 1898/2009, which involved similar
allegations, documents and family circumstances that pointed to a risk of arbitrary detention
and persecution upon return to Bangladesh. 5 The author also argues that the same reasoning
should apply to her claim under article 26 of the Covenant.
5.4
On 16 October 2014, the author informed the Committee that her PRRA application
had been denied for the same reasons set forth by the Refugee Protection Division of the
Immigration and Refugee Board.
State party’s additional observations on admissibility and observations on the merits
6.1
In its observations dated 8 January 2015, the State party informed the Committee
that the author had filed an application for leave and judicial review of the PRRA decision;
the application was still pending. The author was still eligible to file an H&C application
but had not done so.
6.2
The State party reiterates that the communication is inadmissible under articles 1, 2,
3 and 5 (2) (b) on the grounds that it is moot, that domestic remedies have not been
exhausted and that it is incompatible with the provisions of the Covenant. Concerning the
author’s criticisms of the PRRA process, the State party observes that the Federal Court of
Canada has confirmed the independence of PRRA decision makers in several cases.
Moreover, the acceptance rate of such applications in itself does not establish that the
process lacks independence or is biased in favour of removal. The relevance of a low
acceptance rate should be assessed in the light of the nature of the programme and its
clients. The vast majority of PRRA applicants have already been found by the Refugee
Protection Division not to be at risk of persecution, not to face a risk to life and not to be at
risk of torture or cruel or unusual treatment or punishment. The PRRA programme aims to
assess any risk of return at the time of removal that may not have existed at the time of the
5
4
See communication No. 1898/2009, Choudhary v. Canada, Views adopted on 28 October 2013.