Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

120 | PRACTITIONERS GUIDE No. 6also specified that, particularly in cases not involving extradition, “a realrisk is to be deducted from the intent of the country to which the personconcerned is to be deported, as well as from the pattern of conductshown by the country in similar cases.” 348d) Burden of proofAs is common in international human rights mechanisms, the burden topresent an arguable case is on the individual applicant. However, oncethe applicant has submitted sufficient information that could have beenverified by the authorities, the burden shifts to the State Party to explainthe refusal of the non-refoulement protection. 349It must be kept in mind that the burden of proof is linked to the standardof proof. An applicant will therefore have to present sufficient informationdemonstrating the existence of a risk that is probable—real,personal and foreseeable. It will then be up to the State to refute theevidence presented or adduce new information supporting the inapplicabilityof the non-refoulement protection. When the receiving Statehas previously granted refugee status and has subsequently withdrawnit, it will be for the State to demonstrate that the original well-foundedfear of persecution has ceased to exist. 350Furthermore, if the risk that the transferred person might be exposedto serious violations of his or her human rights is known or ought to beknown by the State, the fact that the person did not voice such concernis no excuse not to examine whether the principle of non-refoulementis applicable. 351 Indeed, in the case of Hirsi Jamaa and Others v. Italy,the Grand Chamber of the European Court of Human Rights held that,despite the allegations by Italy that the migrants intercepted in the highseas did not formulate a request for international protection, “it was forthe national authorities, faced with a situation in which human rightswere being systematically violated [. . .] to find out about the treatmentto which the applicants would be exposed after their return [. . .].Having regard to the circumstances of the case, the fact that the partiesconcerned had failed to expressly request asylum did not exempt Italyfrom fulfilling its obligations under Article 3.” 352348 G.T. v. Australia, CCPR, Communication No. 706/1996**, Views of 4 December 1997,para. 8.4.349 A.S. v. Sweden, CAT, Communication No. 149/1999, Views of 15 February 2001, para. 8.6;Na v. United Kingdom, ECtHR, op. cit., fn. 309, paras. 110 and 111.350 C. v. Australia, CCPR, Communication No. 900/1999, Views of 13 November 2002, para. 8.5.351 See, M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324, paras. 346–359.352 Hirsi Jamaa and Others v. Italy, ECtHR, GC, op. cit., fn. 46, para. 133. See also, Report tothe Italian Government on the visit to Italy carried out by the European Committee for thePrevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 to31 July 2009, CPT, op. cit., fn. 265, para. 32.