CAT/C/23/D/86/1997
page 4
Lastly, he claims that, if he were obliged to return to India, he would no longer be able to apply
to the Committee, since India is not a party to the Convention.
State party’s observations on admissibility
4.1
In its response of 26 March 1998, the State party contests the admissibility of the
communication. It states that, in the first place, the author of the communication has not
exhausted all available domestic remedies and secondly, the communication does not give
substantial grounds for believing that the author’s return to India would place him in danger of
being subjected to torture.
4.2
The author has twice applied to the Federal Court for leave to seek judicial review of the
post-claim determination officer’s decision: on 8 October 1996 (when he represented himself)
and on 11 October 1996 (through counsel). He withdrew his first application on
31 October 1996. As to the second application, since the author had not submitted the requisite
documents in time and had not requested an extension in order to do so, it was rejected by the
Federal Court on 31 January 1997.
4.3
On 18 October 1996, the author applied to settle in Canada as an exception to the
immigration regulations requiring the application to be made abroad. This request, for what is
known as a “ministerial dispensation on humanitarian grounds”, was denied as unfounded. The
author could have sought judicial review of the denial of ministerial dispensation on
humanitarian grounds but did not do so. This remedy is still available even though the time limit
has run out, since it is possible to request an extension.
4.4
The author was summoned on 22 October 1996 to the Immigration Centre in Montreal so
that arrangements could be made for his departure from Canada. However, he did not appear as
requested. A warrant for his arrest was therefore issued on 4 February 1997. To date, the author
has neither been arrested nor returned to his country and is at an unknown address.
4.5
The Convention provides for two exceptions to the requirement that all available
domestic remedies must have been exhausted. An individual does not need to resort to remedies
whose application is unreasonably prolonged or which are unlikely to bring effective relief. The
remedy of judicial review of the immigration official’s decision to deny the author the status of
“non-recognized applicant for refugee status” is not covered by either of these exceptions.
4.6
This remedy could be applied within a reasonable period. Although the law does not
provide for automatic suspension, the Federal Court is by definition competent to suspend an
expulsion order while an application for judicial review is processed. In order to obtain such a
suspension, the applicant must show: (i) that the application concerns an issue of substance to be
resolved by the Court; (ii) that he would suffer irreparable damage if the suspension was not
granted; and (iii) that the balance of disadvantages favours him. Such a request can, if necessary,
be submitted and heard as a matter of urgency, sometimes within a few hours.
4.7
Moreover, this remedy would in all likelihood have given the author some relief. If the
Federal Court had been satisfied that an error had been made by the administrative authorities, it
could have ordered a new inquiry to be held. Any fresh consideration of the case based on the