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However, the Court of Appeal is uncertain whether it was permissible for SIAC not to disclose to ZZ the essence of the grounds which constitute the basis of the decision refusing entry at issue in the main proceedings.
It was in those circumstances that the Court of Appeal England and Wales Civil Division decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:. It follows that the question referred has no actual relevance in the main proceedings and is therefore inadmissible.
The question referred thus relates to an area governed by national law and, for that reason, does not fall within European Union competence. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. That is not the case here. Second, that question arises in the context of a genuine dispute relating to the legality of a decision refusing entry taken, pursuant to the directive, by the Secretary of State against ZZ.
Also, under rule 10 3 of those rules, read in conjunction with rule 37 2 , SIAC is to appoint a special advocate to represent the interests of the appellant where the Secretary of State requires before that court that material relied upon in the appeal proceedings be treated as closed material.
In accordance with rule 35, the special advocate makes submissions at hearings from which the appellant is excluded, adduces evidence, cross-examines witnesses and makes written submissions to SIAC. The Secretary of State is required, by virtue of rule 37 3 of the SIAC Procedure Rules, to produce and send to SIAC and the special advocate a copy of the closed material and a statement of his reasons for opposing its disclosure.
In addition, it is incumbent upon the Secretary of State, by virtue of rule 37 4 , to produce a statement of the closed material in a form which can be served on the appellant if and to the extent that it is possible to do so without disclosing information contrary to the public interest. By virtue of rule 36 of the SIAC Procedure Rules, the special advocate may not communicate with the appellant about matters connected with the proceedings once material whose disclosure the Secretary of State opposes has been served on him.
However, he may request directions from SIAC authorising such communication. It is in the light of that national procedure that the Court of Appeal has referred the question to this Court for a preliminary ruling. In addition, Article 30 2 provides that the person concerned must be informed, precisely and in full, of the public policy, public security or public health grounds which constitute the basis of such a decision, unless this is contrary to the interests of State security.
In accordance with Article 31 3 , the redress procedures must include an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. As a derogation from the rule set out in the preceding paragraph of the present judgment, this provision must be interpreted strictly, but without depriving it of its effectiveness. It is to be borne in mind that interpretation in compliance with those requirements must take account of the significance, as resulting from the system applied by the Charter as a whole, of the fundamental right guaranteed by Article 47 thereof.
In particular, it should be taken into account that, whilst Article 52 1 of the Charter admittedly allows limitations on the exercise of the rights enshrined by the Charter, it nevertheless lays down that any limitation must in particular respect the essence of the fundamental right in question and requires, in addition, that, subject to the principle of proportionality, the limitation must be necessary and genuinely meet objectives of general interest recognised by the European Union.
Admittedly, it may prove necessary, both in administrative proceedings and in judicial proceedings, not to disclose certain information to the person concerned, in particular in the light of overriding considerations connected with State security see, to this effect, Kadi and Al Barakaat International Foundation v Council and Commission , paragraph The fundamental right to an effective legal remedy would be infringed if a judicial decision were founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views Commission v Ireland and Others , paragraph 52 and the case-law cited.
As for the requirements to be met by judicial review of the existence and validity of the reasons invoked by the competent national authority with regard to State security of the Member State concerned, it is necessary for a court to be entrusted with verifying whether those reasons stand in the way of precise and full disclosure of the grounds on which the decision in question is based and of the related evidence.
It follows that there is no presumption that the reasons invoked by a national authority exist and are valid. In this connection, the national court with jurisdiction must carry out an independent examination of all the matters of law and fact relied upon by the competent national authority and it must determine, in accordance with the national procedural rules, whether State security stands in the way of such disclosure.
If that authority does not authorise their disclosure, the court proceeds to examine the legality of such a decision on the basis of solely the grounds and evidence which have been disclosed.
In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence.
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Thanks, do you know if you are ever likely to get ZZ in production? As a consequence, since the national proceedings did not disclose any manifest error or unreasonableness and were not tainted by abuse of process, bad faith, manifest bias or serious irregularities, the Committee should not substitute its own findings on whether the author risks being subjected to torture in Afghanistan; it should not become a "fourth instance" that would re-examine the findings of facts by the internal authorities.
Counsel comments On the admissibility 5. In connection with the exhaustion of internal remedies, counsel recalls that the author was granted permanent residence in and that he was later convicted of a criminal offence leading to the deportation order issued against him.
Under the Immigration Act, a person can be deported from Canada and denied access to the refugee procedure if the Minister certifies the person as a "danger to the public in Canada".
In this case, the only issue is whether or not the person is a danger to the public in Canada, not whether the person is at risk. As a result, when such a decision is taken, the person no longer has a right to appeal to the Appeal Division and is also denied a right to make a refugee claim.
She considers that the position of the State party has consistently been that, in certain circumstances, persons who constitute a danger to the public can be deported to their countries of origin even when there is a risk of torture. This was also the substance of the ruling of the Court of Appeals in the case Suresh v. Minister of Citizenship and Immigration. The interpretation of the Federal Court of Appeal is that the Convention does not prohibit in all cases deportation to countries where there is a significant risk of torture.
It is therefore counsel's contention that the official position of the State party, as substantiated by the second highest court in Canada, is that persons can be deported to countries where there would be a substantial risk of torture if there is a compelling State interest. Counsel submits that the Committee must act urgently to make its view clear to the State party that removal to countries where there is a risk of torture is not permitted under any circumstances.
The same may be said for the questioning of the constitutionality of the provision denying the author the opportunity to claim refugee protection. As a consequence, once the author was unable to obtain a stay of the deportation and was indeed deported, all domestic remedies had been exhausted because the deportation order was executed. To perfect applications challenging a decision to execute a decision of removal under these circumstances would, according to counsel, be meaningless.
On the merits 5. To allow any assessment of risk to be made within the context of a determination as to whether a person is a danger to the public to permit his deportation is, according to counsel, unsatisfactory.
The risk assessment has to be conducted independently of any evaluation of danger. Counsel submits that the Committee should know whether or not the State party concluded that the author was at risk.
This is particularly important in light of the position of the State party that deportation to countries where a person risks torture is possible under certain circumstances. The assessment should have taken place prior to the removal. Counsel argues, however, that the State party has not made any effort to verify the author's current situation and determine whether he is safe and at risk of being subjected to torture. Additional comments by State party 6. Furthermore, the State party reiterates its arguments that the removal of the author did not render his rights or pending actions ineffective or moot.
Additional comments by counsel on behalf of the author 7. Issues and proceedings before the Committee 8. 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.
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.
In this connection, the Committee notes that the author was removed to Afghanistan on 27 November
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