CAT/C/49/D/389/2009 Issues and proceedings before the Committee Consideration of admissibility 8.1 Before considering any complaint contained in a communication, the Committee against Torture must decide whether it is admissible under article 22 of the Convention. 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. 8.2 Although the State party initially challenged the admissibility of the communication under article 22, paragraph 5 (b), of the Convention on the ground that the complainant had submitted an application for review of his asylum application on 31 May 2010, the State party subsequently acknowledged that the decision of the Federal Administrative Court of 9 July 2010 to dismiss this new application had again signalled the exhaustion of domestic remedies. The fourth application for review, to which the complainant makes reference in his additional observations, does not appear to render the communication inadmissible either, since that application has been dismissed. Given that all the admissibility criteria, including the exhaustion of domestic remedies, have been met, the Committee finds the communication admissible and proceeds with the consideration of the merits. Consideration of the merits 9.1 The issue before the Committee is whether returning the complainant to Turkey would constitute a violation of the State party’s obligation, under article 3 of the Convention, not to expel or return (refouler) a person to a State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. 9.2 In assessing whether there are substantial grounds for believing that the complainant would be in danger of being subjected to torture if returned to Turkey, the Committee must take account of all relevant considerations, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights in Turkey. However, the question that needs to be determined is whether the complainant runs a personal risk of being subjected to torture in the country to which he would be returned. 9.3 The Committee recalls its general comment on the implementation of article 3 of the Convention, in which it states that the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. Although the risk does not have to be shown to be highly probable, the Committee recalls that the burden of proof normally falls on the complainant, who must present an arguable case establishing that he runs a “foreseeable, real and personal” risk. The Committee also recalls that, as indicated in its general comment No. 1 (1996),6 while it gives considerable weight to the findings of the State party’s bodies, the Committee may freely assess the facts of each case in the light of the particular circumstances. 9.4 In the present case, the Committee considers that the facts as presented do not permit it to conclude that the complainant would personally and currently run a real, foreseeable risk of torture in the event of his return to Turkey. Although the Swiss Federal Office for Migration decided not to consider his case because the complainant’s application for asylum had already been considered in Germany (Dublin II Regulation), the complainant’s claims that he would run the risk of being subjected to torture were examined by the Federal Office for Migration and subsequently by the Federal Administrative Court. However, the complainant has not made an arguable case that he would run a “foreseeable, 6 10 Official Records of the General Assembly, Fifty-third Session, Supplement No. 44 (A/53/44). GE.13-40787