GUIDE ON ANTI-TORTURE LEGISLATION of its article 3 obligation.156 The Committee has held that the non-refoulement obligation must be assessed on the merits of each individual case.157 The Committee is also consistent that the information in article 3(2) of the Convention is not alone sufficient, and the risk of torture must also be “foreseeable, real and personal” to the individual.158 The United Nations Human Rights Committee also addressed the question in its General Comment N°31, stating that States parties to the International Covenant on Civil and Political Rights have “an obligation not to extradite, expel or return a person who will establish that there are substantial grounds for believing that there is a real risk of irreparable harm”.159 The Committee, in General Comment N°1, places the initial burden on the applicant to establish an arguable case that they would be at substantial risk of torture if removed, which is reinforced by their own jurisprudence.160 This position is in line with general principle that the burden rests on the person making an assertion. In terms of the standard of proof, the grounds must go beyond mere theory or suspicion in establishing a danger, but the risk “does not have to meet the test of being highly probable.” 161 Only when the applicant has provided a sufficient level of detail may the burden of proof shift to the State.162 Even though the non-refoulement obligation in article 3 of the UNCAT applies to asylum-seekers and refugees as a jurisdictional matter,163 they are also protected by the specific non-refoulement obligation under international refugee law, namely the prohibition on return to threats to life or freedom (persecution) contained in article 33 of the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol, and as recognised as a principle of customary international law.164 In developing legislation to protect against refoulement to torture, States ought to consider how relevant laws – such as those relating for example to border control, immigration, refugees, subsidiary or complementary forms of protection and extradition – are to be adapted, and to ensure that they are closely synchronised. For example, where the State has adopted a framework for providing protection to persons who do not qualify for refugee status yet cannot be removed owing to a risk of torture, it is recommended that the determination proceedings be heard in a single procedure.165 156 Ibid. 157 Ibid, § 7. 158 CAT, X.Q.L. v. Australia (20 June 2014), UN Doc. CAT/C/52/D/455/2011, § 9.3; CAT, Y.G.H. et al v. China (17 December 2013), UN Doc. CAT/C/51/D/434/2010, § 8.2; CAT, A.R. v. Netherlands (14 November 2003), UN Doc. CAT/C/31/D/203/2002, § 7.3. 159 CCPR, General Comment N°31: The Nature of the General Legal Obligation Imposed on states Parties to the Covenant (26 May 2004) UN Doc. CCPR/C/21/Rev.1/Add.13, § 12. CAT General Comment N°1, op. cit. 154, §§ 4–6; See also CAT, Zare v. Sweden (12 May 2006), UN Doc. CAT/C/36/D/256/2004, § 9.5. 160 161 Ibid, § 6. 162 CAT, A.S. v. Sweden (15 February 2001), UN Doc. CAT/C/25/D/149/1999, § 8.6. 163 CAT General Comment N°1, op. cit. 154. 164 Declaration of States Parties to the 1951 Convention and or Its 1967 Protocol relating to the Status of Refugees, 16 January 2002, HCR/MMSP/2001/09, adopted on 13 December 2001 at the Ministerial Meeting of States Parties to the 1951 Convention and/or Its 1967 Protocol relating to the Status of Refugees, preamble, § 4, available at http://www.refworld.org/docid/3d60f5557.html (last accessed February 2016). See, for example, United Nations High Commissioner for Refugees, UNHCR comments on the European Commission’s proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (COM(2009)554, 21 October 2009), August 2010, available at http://www.refworld.org/ docid/4c63ebd32.html (last accessed February 2016). 165 48