CAT/C/50/D/392/2009 Issues and proceedings before the Committee Consideration of admissibility 6.1 Before considering any complaint contained in a communication, the Committee against Torture must decide whether the communication is admissible under article 22 of the Convention. As required under article 22, paragraph 5 (a), of the Convention, the Committee has ascertained that the same matter has not been and is not being examined under another procedure of international investigation or settlement. 6.2 In accordance with article 22, paragraph 5 (b), of the Convention, the Committee does not consider any complaint unless it has ascertained that the complainant has exhausted all available domestic remedies. This rule does not apply where it has been established that the application of remedies has been unreasonably prolonged or that these remedies are unlikely, after a fair trial, to bring effective relief to the alleged victim. 6.3 The Committee takes note of the State party’s argument that the complaint should be declared inadmissible under article 22, paragraph 5 (b), of the Convention because the complainant did not apply for a visa exemption and permanent resident status on humanitarian grounds (known as an “H&C application”). In that regard, the Committee recalls that, at its twenty-fifth session, in its final observations on the report of the State party, it considered the question of requests for ministerial stays on humanitarian grounds. At that time, the Committee observed that, although the right to assistance on humanitarian grounds is a remedy under the law, such assistance is granted by a minister on the basis of purely humanitarian grounds, rather than on any legal basis, and is thus ex gratia in nature. The decision depends on the discretionary authority of a minister and thus of the executive.4 The Committee also refers to its case law,5 according to which the principle of exhaustion of domestic remedies requires the petitioner to use remedies that are directly related to the risk of torture in the country to which he would be sent, not those that might allow him to stay where he is for reasons unrelated to the risk of torture. Consequently, in the light of its case law on the subject, the Committee finds that, in this instance, the failure to apply for a visa exemption and permanent resident status on humanitarian grounds does not constitute a failure to exhaust domestic remedies and is therefore not an obstacle to the complaint’s admissibility. 6.4 As to the allegations made regarding a violation of article 3 of the Convention, the Committee is of the opinion that the arguments put forward by the complainant regarding the risk of torture that he would face if he were to be sent back to his country raise substantive issues which should be dealt with on the merits, rather than on admissibility alone. The Committee therefore declares the complaint to be admissible. Consideration of the merits 7.1 The issue before the Committee is whether the removal of the complainant to Togo would constitute a failure by the State party to fulfil its obligation under article 3, paragraph 1, of the Convention not to expel or return a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. 7.2 The Committee recalls its jurisprudence and its general comment concerning the implementation of article 3, in which it has established that the burden is upon the complainant to present an arguable case and that the risk of torture must be assessed on 4 5 8 See communication No. 133/1999, Falcon Ríos v. Canada, decision of 23 November 2004, para. 7.3, and communication No. 333/2007, T.I. v. Canada, decision of 15 November 2010, paras. 6.3 and 6.4. Communication No. 170/2000, A.R. v. Sweden, decision of 23 November 2001, para. 7.1. GE.13-45411