CAT/C/50/D/439/2010 4.4 The State party indicates that the Federal Office for Migration concluded in its first decision that it was unlikely that persecution would result from the fact that a brother was supposedly politically active and points out that the opinion in question was confirmed by the decision of the Federal Administrative Court of 2 February 2006. In its second decision, issued on 26 February 2010, the Federal Office for Migration considered that the subjective reason invoked, i.e., political activity in Switzerland, could not be considered relevant for recognition of refugee status. At the same time the Office emphasized that the general reference to a situation likely to be faced by Iranian Arab citizens, in particular those from certain clans or families, was insufficient to conclude that the complainant ran the risk of personal persecution. The complainant justified his failure to appeal against this ruling by invoking the fact that his counsel was overburdened. As the Committee has explained in its case law, a failure on the part of counsel cannot be attributed to the State party.6 Furthermore, the complainant provided no explanation as to why he did not entrust his case to one of the numerous organizations defending the interests of asylum seekers in Switzerland. 4.5 The State party then explains that in its third decision, on 11 June 2010, the Federal Office for Migration specified that the fact that one of the complainant’s brothers was politically active and that the complainant was ethnically an Arab and had been active in Switzerland had already been assessed in the course of the normal proceedings. As for the medical problems invoked (poly drug use and chronic hepatitis), the Office noted that the issue had been raised too late. 4.6 In the light of the foregoing, the State party denies the affirmation that the competent authorities did not consider on its merits the question of whether the complainant would be at risk of persecution in the Islamic Republic of Iran. 4.7 Concerning the alleged health problems of the complainant, the State party considers that they are not of such gravity that they would render his expulsion to the Islamic Republic of Iran wrongful. Such problems, or the medical certificate attesting to their existence, provide no new elements; they could and should have been invoked well before the complainant’s application for reconsideration in 2010, as they had been known to the complainant since 2008. The State party refers to the Committee’s practice according to which the aggravation of the condition of an individual’s physical or mental health by virtue of a deportation is generally insufficient, in the absence of additional factors, to amount to degrading treatment in violation of the Convention.7 4.8 The State party then proceeds to consider the communication from the perspective of article 3 of the Convention. In this connection, it points out that no State party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture, and that for the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The Committee gave specific form to the elements of article 3 in its case law and in general comment No. 1 (1997),8 which stipulates that complainants must establish that there 6 7 8 6 The State party refers in particular to the Committee’s decision in R.S.A.N. v. Canada, communication No. 284/2006, decision of 17 November 2006, para. 6.4. The State party refers in particular to the Committee’s decisions in communications Nos. 220/2002, R.D. v. Sweden, of 8 November 2002, para. 7.2, and 227/2003, A.A.C. v. Sweden, of 6 February 2003, para. 7.3. Official Records of the General Assembly, Fifty-third session, Supplement No. 44 (A/53/44 and Corr.1), annex IX, p. 54. GE.13-45608