CAT/C/51/D/387/2009 new evidence submitted as his situation can be distinguished from previous Committee decisions in which evidence has been found inadmissible on the basis of non-exhaustion of domestic remedies. Moreover, the Committee should admit his complaint regarding torture by individual members of the LTTE who assisted him with entering Australia, on the basis that the Sri Lankan Government will “acquiesce” to pain or suffering intentionally inflicted by private actors, thereby bringing the complaint within the scope of article 3 of the Convention. 7.6 The complainant notes that in each instance where the Committee has found evidence inadmissible pursuant to article 22, paragraph 5 (b), of the Convention, it has made its decision on the basis that such evidence was previously available to the complainant, who elected not to present it to the domestic authorities22 and/or as a result of the new material or otherwise, the complainant had further domestic remedies available to them.23 In the present case, the new evidence submitted by the complainant was not available to him at the time he originally pursued his domestic remedies and therefore he could not have submitted it to the Australian authorities at that time. Furthermore, the new evidence does not entitle the complainant to file a new application or to have his application reviewed or reheard in Australia. The only domestic remedy available to the complainant is ministerial intervention pursuant to sections 48 B or 417 of the Migration Act 1958 (Cth). 7.7 However, this is not a remedy required to be exhausted under the Convention, because it is highly discretionary, non-compellable, non-reviewable and unlikely to bring effective relief. Additional submission from the State party 8.1 On 6 May 2013, the State party commented on the complainant’s further arguments regarding the alleged acquiescence of Sri Lankan authotities to torture by the LTTE. It refers to the Committee’s general comment No. 2, which indicates that consent or acquiescence to torture is comprised of two elements: (1) that the State or its officials know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State or private actors; and (2) that the State and its officials fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State actors.24 8.2 In the light of the above, the State party considers that the complainant has failed to substantiate his allegation in this regard. It contends that the complainant’s submissions, which set out the alleged acts of torture carried out by the LTTE in August 2005, do not refer to or indicate that a public official or other person acting in an official capacity was aware or had reasonable grounds to believe that the alleged acts of torture would or did take place, or that a public official or other person acting in an official capacity failed to prevent, investigate, prosecute or punish the alleged acts of torture. For instance, the complainant does not allege that he attempted to alert Sri Lankan officials to the alleged acts of torture by the LTTE or that Sri Lankan officials were aware of the alleged torture and failed to investigate. Accordingly, no State acquiescence can be attributed to the alleged acts of torture carried out by the LTTE in August 2005. 22 23 24 14 See Committee against Torture, communications No. 399/2009, F.M-M v. Switzerland, decision adopted on 26 May 2011; No. 364/2008, J.L.L. v. Switzerland, decision adopted on 18 May 2012. See Committee against Torture, communications No. 35/1995, K.K.H. v. Canada, decision adopted on 22 November 1995; No. 30/1995, P.M.P.K. v. Sweden, decision adopted on 20 November 1995; No. 365/2008, S.K. and R.K. v. Sweden, decision adopted on 16 January 2012. Committee against Torture, general comment No. 2 (2008) on the implementation of article 2 by States parties, para. 18.