CAT/C/48/D/343/2008 8.2 The Committee takes note of the State party’s observations concerning nonexhaustion of domestic remedies and of the complainant’s comments in this regard. The Committee recalls that, following his deportation to Canada from the United States on 9 April 2006, he applied for refugee status, but that his application was found inadmissible. On 30 March 2007, the complainant applied for a PRRA assessment, the only available remedy. His application was rejected on 7 April 2008. On 20 May 2008, he applied to the Federal Court for review of that decision and of the removal order; this application was also rejected, without any reason being given, on 14 August 2008. 8.3 On 29 May 2008, the complainant applied for permanent residence on humanitarian and compassionate grounds (H&C). With regard to the State party’s observations concerning the effectiveness of this remedy, the Committee recalls that, at its twenty-fifth session, in its concluding observations on the report of the State party, it considered the question of requests for ministerial stays on humanitarian grounds. It noted the apparent lack of independence of the civil servants deciding on such a remedy and the possibility that a person could be expelled while such an application was being considered. It concluded that those circumstances could detract from effective protection of the rights covered by article 3, paragraph 1, of the Convention. It observed that, although the right to assistance on humanitarian grounds may be a remedy under the law, such assistance is granted by a minister on purely humanitarian grounds, rather than on a legal basis, and is thus ex gratia in nature. The Committee has also observed that when an application for judicial review is approved, the Federal Court returns the file to the body that took the original decision or to another decision-making body and does not itself conduct the review of the case or hand down any decision.7 Rather, the decision depends on the discretionary authority of a minister and, thus, of the executive. Based on these considerations, the Committee concludes that, in the present case, the possible failure to exhaust this remedy does not constitute an obstacle to the admissibility of the complaint. 8.4 As regards the alleged violation of article 3, the Committee is of the opinion that the complainant’s arguments raise substantive issues which should be examined on the merits rather than on the basis of admissibility alone. Accordingly, the Committee finds the communication admissible and proceeds to its consideration on the merits. Consideration on the merits 9.1 The issue before the Committee is whether the removal of the complainant to the Democratic Republic of the Congo would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to 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. 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 the Democratic Republic of the Congo, 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 the Democratic Republic of the Congo. However, the aim of such an analysis is to determine 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, which 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 meet the test of being 7 12 See communication No. 333/2007, T.I. v. Canada, decision of 15 November 2010, paragraph 6.3. GE.12-43835