CAT/C/65/D/841/2017
4.12 As for the complainant’s grievance that the national authorities did not undertake
additional enquiries through the Swiss diplomatic mission in the Democratic Republic of
the Congo, it should be noted that such measures are not taken automatically, contrary to
what the complainant’s counsel has claimed. In this case, there was no justification for such
enquiries. Indeed, it is sufficiently clear from the file that the complainant did not perform
sensitive functions at the National Intelligence Agency or, after his departure from the
country, engage in political activity likely to cause trouble for him if he returned. The fact
that, in December 2015, he was able to renew his passport at the consulate of the
Democratic Republic of the Congo in Geneva without any problems also points to the lack
of a tangible risk of persecution.
4.13 In sum, there is nothing concrete in the communication to lend credence to the
claim that the complainant would be exposed to a foreseeable, personal and real risk of
being subjected to acts of torture within the meaning of article 3 of the Convention were he
expelled to the Democratic Republic of the Congo.
4.14 Lastly, it should be noted that, following his request for reconsideration of 29
August 2017, the complainant transmitted a copy of the wanted notification of 14
December 2016 to the State Secretariat for Migration via email on 20 September 2017. The
State party is surprised that, at no time during the hearings of 6 and 27 April 2017, did the
complainant mention the existence of the document even though it was dated 14 December
2016. Moreover, it is a copy of an easily forgeable document. On its own, this piece of
evidence is not of a nature to affect the outcome of the case.
Complainant’s comments on the State party’s observations
5.1
The complainant submitted his comments on the State party’s observations on 12
June 2018.
5.2
Regarding admissibility, the complainant notes that a request for reconsideration is
an extraordinary procedure and has no bearing on the ordinary asylum request before the
Committee. While the Federal Administrative Court has acceded to the request for interim
measures, the complainant is authorized to remain in Switzerland only until the end of the
proceeding before the Court. Since the Court’s decision, which could be handed down at
any time, might go against the complainant, were the Committee to find the communication
inadmissible, the complainant would have to leave Switzerland without delay. Therefore,
the communication is admissible under article 22 (5) (b) of the Convention.
5.3
As for the merits of the communication, the complainant submits that the Committee
should find a violation of article 3 of the Convention on the basis of the case file.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint contained in a communication, the Committee
must decide whether the complaint 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.
6.2
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention,
it may not consider any communications from an individual unless it has ascertained that
the individual has exhausted all available domestic remedies. It notes that the State party, in
referring to a request for reconsideration of the dismissal of the complainant’s asylum
application based, inter alia, on a new element, namely a wanted notification of 14
December 2016, submits that the complainant has not exhausted all available domestic
remedies.
6.3
The Committee notes the complainant’s claim that his request for reconsideration of
the dismissal by the State Secretariat for Migration is an extraordinary procedure and has
no bearing on the communication before the Committee. It also notes that the complainant
did not mention the wanted notification in his allegations before the Committee and, what is
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