CAT/C/44/D/322/2007 done so, the State party considers that the communication should be declared inadmissible for failure to exhaust domestic remedies. 6.2 In any event, the State party argues that the complainants’ assertion that they are at risk of being treated in a manner that would amount to a breach of the Convention on account of their husband/father’s activities in Goma fails to rise to the level of substantiation required for purposes of admissibility. It thus submits that the communication is manifestly unfounded. 6 In particular, it considers that there are strong reasons to question the veracity of the new allegations and that presenting before the Committee a whole new account of the events in the DRC, which has not been presented before the domestic authorities, calls for close scrutiny of that account. This new account of events has to be substantiated by more facts and details. In any case, the account of facts presented by the complainants is contradictory and confusing even in its lack of details. Moreover, the State party finds it remarkable that the complainants mentioned none of these new circumstances in their original complaint to the Committee. At the time of submission of their complaint, the complainants did not even try to explain why these new circumstances had not previously been submitted. It was only in June 2008 that they provided some explanations as to why they had not previously presented these circumstances (see para.5.2 above). With regard to these explanations, the State party wishes to point out that at the initial stages of the domestic proceedings before the Migration Board, Ms. Njamba was informed of the consequences of deliberately stating incorrect information and of excluding information in the case. She was also informed that the officials of the Migration Board as well as the interpreter and the legal counsel were under an obligation of secrecy. Furthermore, the reasons put forward by the complainants still do not explain why the new circumstances were not invoked before the domestic authorities, e.g. in an appeal of the Migration Board’s decision of 7 July 2007. 6.3 The State recalls that article 3 of the Convention is only applicable if the person is in danger of being subjected to torture as defined in article 1 of the Convention.7 It also recalls that the Committee has emphasised in its jurisprudence that the issue of whether a State party is under an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non-governmental entity, without the consent of acquiescence of the Government, falls outside the scope of article 3 of the Convention.8 As the recent claim by the complainants seems to be that they risk being killed by private individuals as revenge for the activities allegedly carried out by their husband/father, this issue in any event falls outside the scope of article 3 of the Convention. 6.4 Concerning the alleged disappearance of the complainants’ family members, the State party reiterates that before the national migration authorities, Ms. Njamba neither claimed that her husband was working undercover for the rebels nor that he would be killed for that reason. The reasons the complainants submitted in their asylum claim were the general conflict in the DRC and Ms. Njamba’s HIV positive status. For the examination of these issues, the alleged disappearance of the rest of the family members was not relevant. Furthermore, the issue of availability of family support upon return was not relevant for the determination of whether Ms. Njamba could return to the DRC despite the fact that she had been diagnosed as HIV positive. It was not relevant because her health was considered to be good and there is adequate HIV treatment in the DRC. Even so, the Migration Court of Appeal examined the issue of the alleged disappearance of the family members. In its judgment, it held that Ms. Njamba’s husband and other children were still somewhere in the 6 See for instance Communication No. 216/2002, H.I.A. v. Sweden, Views adopted on 2 May 2003, para.6.2. See for instance Communication No. 83/1997, G.R.B. v. Sweden, Views adopted on 15 May 1998, para.6.5. 8 Ibid. 7 7