Decision
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement. 7.3. The Committee further recalls its jurisprudence to the effect that authors must avail themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the author. The Committee notes the author’s claim that he has exhausted all available domestic remedies, given that the Federal Court of Canada rejected his applications for review. The Committee nonetheless notes the State party’s argument that the author has filed an application for humanitarian and compassionate consideration that is still pending before the national authorities and that consequently he has not exhausted all domestic remedies. The Committee notes that the author, in his submissions, has not contested the State party’s assertion that not all remedies have been exhausted. However, it considers that the author is not shielded from deportation to Guinea by virtue of having applied for humanitarian and compassionate consideration. The Committee is therefore of the view that such an application cannot be regarded as an effective remedy in the circumstances of the present case. Accordingly, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication. 7. The Committee notes the author’s claim that his rights under articles 6 and 7 of the Covenant would be violated if he were returned to Guinea, given that Guinea is known for its lack of respect for the rights of sexual minorities, who are at risk of extrajudicial executions, torture and criminal convictions. The Committee notes the author’s assertion that, because of his past experiences as a victim of homophobic aggression, he faces certain risk in his country of origin. It also notes the State party’s argument that the author has not substantiated his claims regarding his sexual orientation and that the asylum authorities unanimously called into question his bisexuality or homosexuality. The Committee notes that the State party authorities assessed the risks that the author would face in connection with his alleged homosexuality in the event of his return to his country of origin, and it observes that there is nothing to suggest that its assessment is arbitrary. 7. The Committee notes the author’s claims, on the one hand that his physical and mental health conditions require particular attention by the State party, and on the other hand, that his return to Guinea would amount to torture and cruel treatment. The Committee also notes the State party’s observation that the decisions taken by the officer responsible for the application for humanitarian and compassionate consideration, the officer responsible for the application for a pre-removal risk assessment and the Canada Border Services Agency were based on rigorous analysis and that all those bodies concluded that the author could continue with his treatment in Guinea. The Committee notes the State party’s assertion that the claims related to the author’s health are incompatible ratione materiae with articles 6 and 7 of the Covenant. However, it recalls that its jurisprudence favours a broad interpretation of the right to life, according to which the protection of this right requires that States parties adopt positive measures. In particular, as a minimum, States parties have the obligation to provide access to existing health-care services that are reasonably available and accessible when lack of access to the health care would expose a person to a reasonably foreseeable risk that can result in loss of life. The Committee emphasizes that, in the present case, the author has not explained in what way the State party failed to provide the care necessary for him to enjoy his right to life. The Committee also notes that, in the present case, the medical reports submitted by the author and the other health-related information are not sufficient to demonstrate exceptional circumstances related to his condition such that articles 6 and 7 of the Covenant would be violated in the event of his return to Guinea. 7. The Committee recalls paragraph 12 of its general comment No. 31 (2004), in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant. The Committee also indicates in the general comment that the risk must be personal and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin. The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that the assessment was arbitrary or amounted to a manifest error or denial of justice. 7. Regarding the author’s claims under article 2 of the Covenant, the Committee recalls that the provisions of article 2 lay down general obligations for States parties that cannot, by themselves and standing alone, give rise to a claim in a communication under the Optional Protocol. The Committee thus considers that the author’s claims to this effect cannot be sustained and that, accordingly, they are inadmissible under article 2 of the Optional Protocol. The Committee further notes that, while the author disagrees with the factual conclusions of the State party authorities, the information before the Committee does not show that those conclusions are manifestly unreasonable. The Committee considers that the author has not adequately demonstrated that the assessment of his asylum case by the Canadian authorities was clearly arbitrary or amounted to a manifest error or a denial of justice. Accordingly, the Committee considers that the author’s claims under articles 2, 6 and 7 of the Covenant are insufficiently substantiated and therefore inadmissible under article 2 of the Optional Protocol. 8. The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol; (b) That the present decision shall be transmitted to the State party and to the author.