Decision; Subjects: SWEDEN, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.24-01395 (E) 020224 060224
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 937/2019*, **
Communication submitted by:
A.A.S. et al. (represented by counsel,
Rebecca Ahlstrand and Ruth Nordström)
Alleged victims:
The complainants
State party:
Sweden
Date of complaint:
24 May 2019 (initial submission)
Document references:
Decisions taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted
to the State party on 2 July 2019 (not issued in
document form)
Date of adoption of decision:
17 November 2023
Subject matter:
Deportation to Afghanistan
Procedural issue:
Level of substantiation of claims
Substantive issue:
Risk to life or risk of torture or other cruel,
inhuman or degrading treatment or punishment,
if deported to country of origin
(non-refoulement)
Article of the Convention:
3
1.1
The complainants are A.A.S., born in 1965; his children, N.S., born in 1997, S.S. 1,
born in 2000, and S.S 2., born 1996; and S.H., the wife of S.S. 2, born in 1997, and H.S.,
their daughter, born in 2015.1 They are all nationals of Afghanistan. They applied for asylum
in Sweden on the grounds of fear of the former husband of N.S., following their forced
marriage and, subsequently, their conversion to Christianity; however, their applications
were rejected. They claim that their forcible removal to Afghanistan would amount to a
violation by Sweden of article 3 of the Convention as they fear that they will face ill-treatment
or torture if removed. To avoid irreparable harm, the complainants urged the Committee to
issue interim measures to halt their deportation to Afghanistan while their communication
was being considered by the Committee. The State party has made the declaration pursuant
* Adopted by the Committee at its seventy-eighth session (30 October–24 November 2023).
** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Claude Heller, Erdogan Iscan, Liu Huawen, Maeda Naoko, Ilvija Pūce, Ana Racu,
Sébastien Touzé and Bakhtiyar Tuzmukhamedov.
1 The Committee received separate submissions on the basis of the different cases considered by the
Migration Agency. However, the present communication comprises all of those separate submissions
since the cases were examined jointly by the Migration Court and the complainants wish the
Committee to examine their cases jointly.
United Nations
CAT/C/78/D/937/2019
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
6 February 2024
Original: English
CAT/C/78/D/937/2019
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to article 22 (1) of the Convention, effective from 26 June 1987. The complainants are
represented by counsel.
1.2
On 2 July 2019, pursuant to rule 114 of its rules of procedure, the Committee, acting
through its Rapporteur on new complaints and interim measures, asked the State party not to
expel the complainants while their complaint was being considered.
Facts as submitted by the complainants
2.1
The complainants are nationals of Afghanistan of Tajik ethnicity and are Sunni
Muslims. They all resided in Herat and claim to have practised Islam, although they did not
have a strong connection to the religion.
2.2
In 2015, A.A.S. was forced to allow his 17-year-old daughter, N.S., to marry his
uncle’s son, W.A., who was 40 years old and had another wife at the time of the marriage.2
W.A, who is powerful and wealthy, wanted to marry N.S. to have children because his first
wife could not. W.A. is a car salesman who the complainants believe also smuggles drugs
within Afghanistan. W.A. has a large network of connections throughout Afghanistan,
including with the Government. The associates of W.A. were also known by the complainants
to be armed.
2.3
W.A. was “unkind” from the beginning of his marriage to N.S. He soon began to
physically and psychologically abuse N.S. His friends used to visit his house where they
would use drugs, smoke all night, be loud and force N.S. to cook and serve them. If the food
was not up to standard, W.A. would beat her. N.S. told her family what was happening and
A.A.S. went to speak with W.A. The latter told A.A.S. that N.S. was no longer the daughter
of A.A.S. and that she was his property. W.A. threatened A.A.S., telling him not to contact
his daughter ever again. A.A.S. asked his son, S.S. 2, to go to speak with W.A. S.S. 2 was
beaten and the associates of W.A. threatened him with a weapon. A.A.S. and S.S. 2 reported
that attack to the police. No action was taken by the police. N.S. told her family that she was
going to commit suicide if she had to continue to live with W.A.
2.4
A.A.S. organized for N.S. to leave Afghanistan with S.S. 2, his wife, S.H., and their
daughter, H.S.3 The four left Afghanistan together for the Islamic Republic of Iran. After N.S.
fled from the house of W.A., he visited A.A.S., asking about N.S. and threatened A.A.S. and
his family. W.A. told A.A.S. that if A.A.S. did not return N.S. to him, he would kill all of
A.A.S.’s family and stone N.S. to death. When A.A.S. heard that threat, he decided that he
and the remainder of the family would leave Afghanistan. They joined N.S., S.S. 2, S.H. and
H.S. in the Islamic Republic of Iran. The complainants spent between a week and nine days
in the Islamic Republic of Iran.4 A smuggler helped them cross the border into Türkiye and
from there to Greece. At the border between the Islamic Republic of Iran and Türkiye, gunfire
broke out. The family was separated and their identification documents were lost.5 A.A.S.,
N.S., S.S. 2, S.H., H.S., and S.S. 1 continued on from Türkiye to Greece, where Christians
from the Word of Life Church helped them by giving the family clothes, food and shelter.
Two of the Christians who helped them began teaching them about Christianity.
2.5
The family entered Sweden, where they applied for asylum on 12 November 2015 on
the grounds of their risk of being exposed to torture and inhuman and degrading treatment in
Afghanistan. While in Sweden, the complainants began attending the Word of Life Church
on a regular basis. They began reading from a Persian translation of the Bible and studying
Christianity. All of the complainants were baptized on 18 June 2017 by E.S. of the Word of
Life Church. The complainants were active in their church and regularly discussed religion
with other Christians to better understand their new faith.
2 The exact date of the marriage was not provided.
3 The Migration Board’s interviews with the complainants revealed discrepancies in relation to the
exact date on which N.S., S.S. 2, S.H. and H.S. left Afghanistan.
4 The two groups (comprising N.S., S.S. 2, S.H. and H.S; and A.A.S. and S.S. 1) spent different
amounts of time in the Islamic Republic of Iran since they left on different dates.
5 During each of the Migration Board’s interviews with the complainants, it was noted that they had
lost their Tazkira (Afghan identification cards) during the chaos at the border.
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2.6
The asylum request before the Migration Agency was split into multiple cases. A.A.S.
and his minor son, S.S.1, were interviewed by the Migration Board on 2 June 2017. Their
case was decided by the Migration Agency on 26 October 2017. S.S.2, S.H. and H.S. were
interviewed by the Migration Board on 30 May 2017 and their case was decided on
30 October 2017 by the Migration Agency. N.S. was interviewed on 1 June 2017 by the
Migration Board and her case was decided on 10 November 2017 by the Migration Agency.
The Migration Agency held that, while all complainants supplied enough information to
establish their identities in lieu of official identification documents, the story about W.A.
threatening their family was not credible. The Migration Agency held that the stories were
too inconsistent and that there was not a real threat of harm from W.A. should the family be
deported. Regarding their conversion to Christianity, the Migration Agency held that none of
the complainants could adequately discuss the tenets of their new faith for it to have been a
genuine conversion. As such, the Migration Agency held that the complainants should be
deported.
2.7
The complainants appealed the decision of the Migration Agency to the Malmö
Migration Court. The complainants argued that the facts presented regarding their conversion
to Christianity and the threat posed by W.A. were credible grounds for asylum. For that
reason, they asked that the case be referred back to the Migration Board for processing due
to an insufficient investigation of N.S., which thereby affected other complainants’ perceived
credibility. The Malmö Migration Court held an oral hearing on 13 December 2018 and
denied referral on 4 January 2019. The Court upheld the finding of the lower court that the
facts presented were not reliable regarding W.A. and that the complainants’ conversion did
not seem genuine.
2.8
The complainants appealed the decision of the Malmö Migration Court to the
Migration Court of Appeal. On 19 March 2019, the Migration Court of Appeal denied the
applicants’ leave to appeal. In April 2019, the complainants received serious threats from
W.A. by phone, both in relation to N.S. and their conversion to Christianity. That telephone
conversation was recorded and, since it was a new circumstance, it was not examined by the
migration authorities.
2.9
The complainants claim that they have exhausted all available domestic remedies and
that the same matter has not been and is not being examined before any other mechanism of
international investigation or settlement.
Complaint
3.1
The complainants claim that their forcible removal to Afghanistan would amount to a
violation by Sweden of article 3 of the Convention. Relying upon article 3 of the Convention,
the complainants contend that there are substantial grounds to believe they would be in
danger of being tortured if returned to Afghanistan. The complainants assert that, if returned,
they will be killed by W.A. and his associates. N.S. will be stoned to death for leaving her
husband, and W.A. will kill the remaining family members for helping her to escape and for
converting to Christianity.
3.2
The complainants submit that the migration authorities did not sufficiently consider
their social background, education and gender in the assessment of their asylum application.
They also submit that the Migration Agency did not sufficiently consider the best interests of
the child in the asylum process. The complainants further contend that their conversion to
Christianity constitutes a sur place reason to grant asylum. They have been practising
Christianity for several years now. They have provided evidence in the complaint about the
conditions for Christians and converts in Afghanistan. Based on the reactions of family
members in Afghanistan, the complainants assert that they will be killed for their perceived
apostasy.
3.3
The complainants conclude that, in the light of their personal situation, as active
Christians, and the threats against them, there are substantial grounds for believing that they
would risk being subjected to torture if they were returned to their country of origin.
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State party’s observations on admissibility and the merits
4.1
In a note verbale dated 19 December 2019, the State party submitted its observations
on admissibility and the merits.
4.2
Although it does not contest the fact that all available domestic remedies have been
exhausted in the present case, the State party notes, however, that the complainants have cited
entirely new circumstances before the Committee that have not been examined by its
migration authorities. The State party notes also that the complainants themselves point out
that they have not previously cited an alleged phone call containing threats from the former
husband of N.S. or submitted a transcript of the phone call. Therefore, the State party holds
that the communication relating to the new circumstances cited before the Committee should
be declared inadmissible.
4.3
Furthermore, the State party contends that the complainants’ assertion that they were
at risk of being treated in a manner that would amount to a violation of article 3 of the
Convention if returned to Afghanistan was insufficiently substantiated for the purposes of
admissibility. It, therefore, submits that the communication is manifestly unfounded and thus
inadmissible pursuant to article 22 (2) of the Convention and rule 113 (b) of the Committee’s
rules of procedure.
4.4
The State party notes that, although the complainants have not expressly claimed in
the present communication that they are at risk of treatment contrary to article 3 of the
Convention due to the general security situation in Afghanistan, it does not wish to
underestimate the concerns that may legitimately be expressed with respect to the general
human rights situation in Afghanistan; however, the situation there has not been deemed such
that there is a general need to protect all asylum-seekers from the country. The State party
submits that the Committee must focus on the foreseeable consequences of the complainants’
expulsion to Afghanistan in the light of their personal circumstances, such as was done by
the migration authorities in their assessments in the present matter.
4.5
The State party recalls the Committee’s decisions and observes that the burden of
proof in cases such as the present one rests upon the complainants, who must present an
arguable case establishing that they run a foreseeable, present, personal and real risk of being
subjected to torture. In addition, 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
highly probable.6
4.6
Regarding the general legal framework of the asylum procedure, the State party
informs the Committee that several provisions in its Aliens Act reflect the same principles as
those laid down in article 3 of the Convention, and it observes that national migration
authorities apply the same kind of test when considering an application for asylum under the
Aliens Act as the Committee applies when examining a subsequent complaint under the
Convention. In that context, the State party notes that, under the Aliens Act, the expulsion of
an alien may never be enforced to a country where there is reasonable cause to assume that
the alien would risk being subjected to the death penalty or corporal punishment, torture or
other inhuman or degrading treatment or punishment, or to a country where the alien is not
protected from being sent on to another country in which the alien would run such a risk.
4.7
The State party observes that the national authorities are in a very good position to
assess the information submitted by asylum-seekers and to appraise the credibility of their
statements and claims, and underlines that, in the present case, both the Migration Agency
and the Migration Court have conducted thorough examinations of the complainants’ case.
4.8
Regarding the asylum procedure, the State party notes that the Migration Agency
carried out extensive individual asylum investigations into each of the complainants. The
minutes from the investigations were subsequently communicated to their counsel. Upon
appeal, the Migration Court held an oral hearing on 13 December 2018, during which the
complainants were all heard individually. The investigations of the Migration Agency and
6 H.O. v. Sweden, communication No. 178/2001, para. 13; A.R. v. Netherlands
(CAT/C/31/D/203/2002), para. 7.3; Kalonzo v. Canada (CAT/C/48/D/343/2008), para. 9.3; and X v.
Denmark (CAT/C/53/D/458/2011), para. 9.3.
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the oral hearing at the Migration Court were conducted in the presence of the complainants’
counsel and with the assistance of interpreters, whom the complainants confirmed that they
understood well.
4.9
The State party contends that, through their counsel, the complainants were invited to
scrutinize and submit written observations on the minutes of the interviews conducted, and
to make written submissions and appeals. They had several opportunities to explain the
relevant facts and circumstances in support of their claims and to argue their case, orally as
well as in writing, before the Migration Agency and the Migration Court. Therefore, the State
party holds that the Migration Agency and the Migration Court had sufficient information,
together with the facts and documentation in the case, to ensure that they had a solid basis to
make a well-informed, transparent and reasonable risk assessment concerning the
complainants’ need for protection in Sweden.
4.10
The State party recalls the Committee’s decisions in which it was confirmed that the
Committee was not an appellate, quasi-judicial or administrative body and that considerable
weight should be given to findings of fact made by organs of the State party concerned.7 The
State party holds that there is no reason to conclude that the national rulings were inadequate
or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a
denial of justice.8 Accordingly, considerable weight must be attached to the opinions of the
Swedish migration authorities, as expressed in their rulings ordering the expulsion of the
complainants to Afghanistan.
4.11
The State party argues that the domestic authorities have, in accordance with domestic
law, paid due regard to the principle of the best interests of the child. 9 They have thus
systematically gathered and described relevant facts and analysed the consequences of a
potential expulsion for the children, in particular, on their health and development. The State
party notes that H.S., who was only a couple of years old during the domestic proceedings,
never cited individual grounds for protection. Instead, she referred to her parents’ need for
protection. Furthermore, nothing emerged during the domestic proceedings to suggest that
she, or S.S.1, the other minor, suffered from health issues.
4.12
The State party draws the Committee’s attention to the fact that, during the domestic
asylum proceedings, the complainants did not submit any identity documents or other written
evidence in support of their identities. Their oral submissions in that regard were considered
vague and lacking in detail. The domestic authorities therefore found that they had not
plausibly demonstrated their identities. However, the domestic authorities found no reason
to disbelieve that the complainants were nationals of Afghanistan from Herat Province. Their
cited need for international protection was therefore examined in relation to the prevailing
conditions there.
4.13
The State party argues that, according to the Migration Agency, the complainants’
accounts regarding the alleged threat from the former husband of N.S. were vague and
inconsistent. Consequently, there were reasons to question the complainants’ reliability. The
Migration Agency found that the information provided by the complainants regarding their
particular situation contradicted the country of origin information available about forced
marriages. In that regard, the Migration Agency noted that the complainants had been unable
to explain how an influential uncle was able to force A.A.S. into marrying off his daughter
to the uncle’s son even though the uncle was supposedly dead.
4.14
Furthermore, the State party holds that, upon appeal, the Migration Court noted that
the complainants had escalated their accounts related to the alleged threat against them in
Afghanistan. The Court also noted that the complainants, during the oral hearing, altered their
accounts in some regards concerning why they had left their country of origin. The
information provided by the complainants during the oral hearing was further considered
inconsistent in relation to what they had stated during the asylum investigations by the
7 See, for example, N.Z.S. v. Sweden (CAT/C/37/D/277/2005), para. 8.6; N.S. v. Switzerland
(CAT/C/44/D/356/2008), para. 7.3; and S.K. et al v. Sweden (CAT/C/54/D/550/2013), para. 7.4.
8 A.N.M v. Sweden (CAT/C/60/D/677/2015).
9 In accordance with the provision on the best interests of the child contained in chapter 1, section 10,
of the Aliens Act, which is derived from article 3 of the Convention on the Rights of the Child.
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Migration Agency. Moreover, the Court found that A.A.S provided entirely new information
that had not been previously cited. In its overall assessment, the Court held that the
complainants’ accounts were neither reliable nor credible. In agreement with the Migration
Agency, the Court also noted that the complainants’ assertions contradicted the country of
origin information available about forced marriages. Consequently, the Court held that the
complainants had not plausibly demonstrated that there was a personal threat against them in
Afghanistan from the former husband of N.S.
4.15
The State party also notes that N.S. claimed, during the domestic asylum proceedings,
that she, as a woman, was at risk of treatment constituting grounds for international protection,
partly because of her former husband and partly because she did not have a male network in
Afghanistan. The State party adds that, since the domestic authorities found that the
complainants could return to Afghanistan together, N.S. would return with her father and
brother, which meant that she would have a male network. Accordingly, N.S. was not able to
plausibly demonstrate that there was a threat against her in Afghanistan because she was a
woman.
4.16
Concerning the complainants’ claim of conversion to Christianity, the State party
acknowledges that, according to the relevant country of origin information, there is support
for the assessment that individuals who return to Afghanistan after having renounced their
Muslim beliefs or converted during an asylum process run a real risk of persecution
warranting international protection. However, in the present case, the State party holds that
the migration authorities concluded that the complainants had not plausibly demonstrated
that they had converted to Christianity based on a genuine and personal religious conviction.
Nor had they plausibly demonstrated that they intended to live as converts, which would
place them at risk of attracting the interest of the Afghan authorities or individuals upon
forced return to Afghanistan. The domestic authorities considered that the complainants had
not plausibly demonstrated, based on what had emerged in the case, that they were at risk of
being ascribed any Christian beliefs. Furthermore, the State party notes that the complainants’
cited conversion took place in Sweden only weeks after their asylum investigations were held,
during which they claimed to be novices with limited knowledge of Christianity.
4.17
The State party adds that, during the domestic asylum proceedings, the migration
authorities gave the complainants the opportunity to individually explain how their interest
in Christianity had come about and to describe their reasoning before deciding that they
wanted to convert. Both the Migration Agency and the Migration Court found that the
complainants’ accounts were vague and lacking in detail; they were deemed unable to explain,
in a genuine way, what Christianity meant for them personally in their everyday life.
4.18
Consequently, the State party holds that what was presented in the domestic
proceedings and what has been submitted to the Committee is insufficient to conclude that
the complainants’ expulsion to Afghanistan would constitute a violation of its obligations
under article 3 of the Convention due to risks associated with the invoked conversion.
Concerning the admissibility of the communication, the State party considers that the
complaint should be declared inadmissible under article 22 (2) (and rule 113 (b) of the
Committee’s rule of procedure) as being manifestly unfounded. Concerning the merits, the
State party holds that the communication reveals no violation of the Convention.
Complainants’ comments on the State party’s observations
5.1
On 14 July 2021, the complainants submitted their comments.
5.2
In response to the claim that the complaint is inadmissible for being manifestly
ill-founded, the complainants argue that they have fully substantiated their claims and
therefore the communication is admissible.
5.3
Regarding their conversion to Christianity, the complainants note that, in Afghanistan,
they will have to hide their Christian beliefs because of fear of reprisals and persecution, and
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they will not be able to freely manifest their religious faith. Moreover, there are no official
Christian churches in Afghanistan open to Afghan citizens.10
5.4
The complainants concede that the State party’s argument is true that they did not cite,
in the domestic proceedings, the threats from the former husband of N.S. However, they
contest that the threats and transcripts of threats should be declared inadmissible. They hold
that any application based on the transcripts or audio files of threats would neither lead to a
residence permit under chapter 12, section 18, of the Aliens Act nor a new examination of
the issue of residence permits under chapter 12, section 19, thereof. Such circumstances
would clearly only be considered additions or modifications of previously stated grounds for
asylum, which is the regular response to such applications. The complainants indicate that
all the domestic remedies concerning the threat from the latest phone call, which has been
provided as a transcript, have been exhausted, as there is no realistic possibility of this
evidence leading to any examination on the merits.
5.5
Concerning the merits, the complainants submit that, in the present case, the general
security situation in Afghanistan should be considered a cumulative factor in the assessment
of the risk of treatment contrary to the Convention.
5.6
The complainants argue that they provided several testimonies of their faith to the
migration authorities from pastors, church leaders and Christian friends; as well as baptism
certificates, which have not been questioned by the State party. The complainants indicate
that the basis for not believing them is, however, constituted by evaluations and assessments
made in a clearly arbitrary manner. They contend that there is a real and personal risk of them
being subjected to torture in Afghanistan.
5.7
The complainants do not dispute that the migration authorities have, in most respects,
formally fulfilled the requirements of the judicial proceedings, nor do they contest that the
migration authorities are special bodies with particular expertise in the field of asylum law.
However, the complainants assert that formal procedures are not enough when the
assessments and decisions are arbitrary and, while according considerable weight to the
assessments made by the authorities, the Committee is not bound by such findings.11 The
complainants contest the fact that they are not considered reliable and credible on the basis
of alleged small inconsistencies in their stories. The overall story is, however, consistent. The
complainants add that, according to the case law of the European Court of Human Rights,
minor inconsistencies should not undermine the overall reliability of a story.12
5.8
As regards the issue of their religion-based claims in domestic proceedings, the
complainants refer to the Guidelines on International Protection: Religion-Based Refugee
Claims under Article IA (2) of the 1951 Convention and/or the 1967 Protocol relating to the
Status of Refugees, which stipulate, inter alia, that, in the assessment of religious beliefs:
“Refugee status determinations based on religion could also benefit from the assistance of
independent experts with particularised knowledge of the country, region and context of the
particular claim and/or the use of corroborating testimony from other adherents of the same
faith.” The complainants also point out that Sweden is commonly considered as one of the
world’s most secular States with limited capacity in assessing religious beliefs. In that regard,
the complainants submit that there is a lack of expertise among the migration authorities in
assessing religion-based claims. They also assert that the depth of convictions is also difficult
to assess within an interview lasting two or three hours at the Migration Agency and could
naturally grow over time.
10 Lifos (Swedish centre for country information and analysis in the field of migration), “Temarapport:
Afghanistan – Kristna, apostate och ateister” (Stockholm, Swedish Migration Agency, 2017) (in
Swedish), p. 6; and Open Doors International and World Watch Research Unit, “Afghanistan: country
dossier – January 2019” (2019), p. 1.
11 General comment No. 4 (2017), para. 50; and see, for example, G.K. v. Switzerland
(CAT/C/30/D/219/2002), para. 6.12.
12 European Court of Human Rights, R.C. v. Sweden, Application No. 41827/07, Judgment, 9 March
2010.
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5.9
The complainants hold that similar criticism of arbitrary assessments in religion-based
claims of an atheist were made by the Human Rights Committee in Q.A. v. Sweden,13 in which
a violation of the International Covenant on Civil and Political Rights was found. The Human
Rights Committee noted that the migration authorities had, nonetheless, assessed each ground
for protection the author alleged separately and had not assessed the fact that the combined
grounds aggravated the risk faced by the author, even though he was facing intersecting forms
of vulnerability, which had led them to conclude that the author had failed to establish
sufficient grounds to substantiate that he would face irreparable harm if returned to
Afghanistan (para. 9.6).
5.10
The complainants submit that they genuinely told their story in a clear, personal and
credible manner. They contend that the assessment of the Migration Court is arbitrary and
based on subjective views on religious experiences. The complainants submit that, in the case
of S.H., the Migration Court did not mention that she was illiterate, which is a highly relevant
factor that should always be considered. According to the guidelines/regulations of the
Migration Agency and the Guidelines on International Protection: Religion-Based Refugee
Claims under Article IA (2) of the 1951 Convention and/or the 1967 Protocol relating to the
Status of Refugees, authorities should appreciate the frequent interplay between religion and
gender, race, ethnicity, cultural norms, identity, ways of life and other factors. In that regard,
each case should be individualized, and special consideration should be given to age, gender,
and cultural, social and educational aspects before an oral hearing is held. That is clearly
lacking in the Swedish assessments.
5.11
The complainants submit that the fact that the family is still active in the Christian
church, three years after the first investigation, shows that they are still growing in knowledge.
Regarding the State party’s remarks on the timing of their baptism, the complainants state
that they were baptized after the interview at the Migration Agency and before it made its
first decision, which must be considered as the beginning of their asylum proceedings.
5.12
As regards the forced marriage, the complainants submit that the assessment of the
migration authorities is contrary to country information and there is nothing to support the
argument that the forced marriage described by the complainants is not credible. The
complainants also submit that the country information alleged to support the argument of the
migration authorities 14 contains examples of different cultural marriage traditions and
significant local variations. The complainants, therefore, conclude that the assessment of the
migration authorities is contrary to country information and there is nothing to support the
argument that the forced marriage described by them is not credible.15
5.13
The complainants maintain that there are serious threats from the former husband of
N.S. The complainants argue that the aforementioned country of origin information states
that women can be punished for moral crimes, such as leaving their husbands, which is the
case of N.S. The fact that N.S. left her husband constitutes a threat to her and her entire family.
However, the Swedish migration authorities did not attach sufficient weight to the gender
issues, stigma, honour crimes and violence that N.S., as a single divorced woman who left
her husband, could be subjected to. The fact that N.S. also converted, or at the very least
might be thought to have converted, to Christianity should also be considered jointly with the
risks associated with gender and other issues. However, the migration authorities tend to view
each ground for protection separately, thereby not considering the full weight of all the
grounds for protection together.16
5.14
The complainants submit that the State party failed to properly assess the best interests
of the child in the case of H.S., who was a minor at the time of the asylum application. The
complainants submit that the authorities should, of their own accord, make an individual
assessment of plausible protection grounds concerning a child, 17 as a child can have
13 Q.A. v. Sweden (CCPR/C/127/D/3070/2017).
14 United Kingdom of Great Britain and Northern Ireland, Home Office, “Country policy and
information note – Afghanistan: women fearing gender-based violence” (London, 2016), pp. 20, 21,
29 and 30.
15 See, for example, Q.A. v. Sweden.
16 Ibid.
17 The State party has noted that the child (H.S.) never cited individual grounds.
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protection grounds that are separate from the parents. In the case of H.S., there is an obvious
risk of forced marriage in Afghanistan, as a majority of marriages are arranged, which was
never mentioned in the relevant decisions. The authorities cannot renounce their
responsibility to investigate, relying solely upon an applicant’s stated grounds for
protection.18 As the migration authorities conclude in their own reports, women and children
belong to vulnerable groups in Afghanistan, which should lead to the conclusion that such
circumstances needed to be specifically examined in the complainants’ case.19
State party’s additional observations
6.1
On 1 July 2020, the State party submitted its additional observations. The State party
reiterates that the domestic instances paid due regard to the principle of the best interests of
the child during the asylum process. While noting the migration authorities’ assessment that
individuals who return to Afghanistan after having renounced their Muslim beliefs or
converted during an asylum process run a real risk of persecution warranting international
protection, the State party argues that the burden of proof rests upon the complainants to
plausibly demonstrate that the claimed conversion from Islam to Christianity is based on a
genuine and personal religious conviction. In that regard, the State party contends that the
mere claim of such a conversion is insufficient to conclude that there is a real risk of
persecution of an individual, which would warrant international protection.
6.2
The State party reiterates that the domestic migration authorities found that the
complainants’ accounts regarding the former husband of N.S. were not credible. The State
party maintains its position that there is no reason to conclude that the domestic rulings were
inadequate or that the outcome of the domestic proceedings was in any way arbitrary or
amounted to a denial of justice. The State party also maintains that the complainants’ account
and the facts upon which they rely in the complaint are insufficient to conclude that the
alleged risk of ill-treatment upon their return to Afghanistan meets the requirements of being
foreseeable, real and personal. Consequently, an enforcement of the expulsion orders would
not, under the present circumstances, constitute a violation of the State party’s obligation
under article 3 of the Convention. Accordingly, the State party maintains its position
regarding the admissibility and merits of the present complaint as expressed in its initial
observations.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
7.2
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, in the present case,
the State party has not contested the fact that the complainants have exhausted all available
domestic remedies20 and that the new circumstances, including phone calls from the former
husband of N.S. threatening the complainants, should be declared inadmissible. The
Committee also notes the complainants’ argument that such new circumstances would neither
lead to a residence permit21 nor to a new examination of the issue of residence permits;22 they
18 European Court of Human Rights, F.G. v. Sweden, Application No. 43611/11, Judgment, 23 March
2016.
19 Lifos, “Temarapport: Afghanistan – Säkerhetsläget, potentiellt utsatta personkategorier, situationen
för kvinnor, barn, hazarer samt internflykt” (Stockholm, Swedish Migration Agency, 2016) (in
Swedish).
20 E.M.M.A. v. Sweden (CAT/C/74/D/960/2019), paras. 9.2, 9.4 and 10.
21 Under the Aliens Act, chap. 12, sect. 18.
22 Ibid., sect. 19.
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would only be considered as additions to or modifications of previously stated grounds for
asylum. Therefore, the Committee observes that all the available domestic remedies have
been exhausted.
7.3
Furthermore, the Committee notes that, in the present case, the State party has
contested admissibility, stating that the communication is manifestly unfounded and thus
inadmissible pursuant to article 22 (2) of the Convention and rule 113 (b) of the Committee’s
rules of procedure. The Committee considers, however, that the arguments put forward by
the complainants have been sufficiently substantiated; in particular, the allegations that they
are at risk of being treated in a manner that would amount to a violation of article 3 of the
Convention, if returned to Afghanistan, considering both the possible threats against them by
the former husband of N.S. and the individual situation of the complainants. Accordingly,
the Committee declares the complainants’ claims under article 3 of the Convention
admissible and proceeds with its consideration of the merits.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22 (4) of the Convention.
8.2
In the present case, the issue before the Committee is whether the forcible removal of
the complainants to Afghanistan would constitute a violation of the State party’s obligations
under article 3 of the Convention not to expel or to return (refouler) 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.
8.3
The Committee must evaluate whether there are substantial grounds for believing that
the complainants would be personally in danger of being subjected to torture upon return to
Afghanistan. In assessing that risk, the Committee must take into account all relevant
considerations, pursuant to article 3 (2) of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights. However, the
Committee recalls that the aim of such a determination is to establish whether the individuals
concerned would be personally at a foreseeable and real risk of being subjected to torture in
the country to which they would be returned. It follows that the existence of a pattern of gross,
flagrant or mass violations of human rights in a country does not as such constitute sufficient
reason for determining that individuals would be in danger of being subjected to torture on
return to that country; additional grounds must be adduced to show that the individuals
concerned would be personally at risk. Conversely, the absence of a consistent pattern of
flagrant violations of human rights does not mean that individuals might not be subjected to
torture in their specific circumstances.
8.4
The Committee recalls its general comment No. 4 (2017) on the implementation of
article 3 of the Convention in the context of article 22, according to which the Committee
will assess “substantial grounds” and consider the risk of torture as foreseeable, personal,
present and real when the existence of credible facts relating to the risk by itself, at the time
of its decision, would affect the rights of complainants under the Convention in case of their
deportation. Indications of personal risk may include, but are not limited to: (a) the ethnic
background of the complainants; (b) political affiliation or political activities of the
complainants or their family members; (c) arrest or detention without guarantee of fair
treatment and trial; (d) sentence in absentia; and (e) previous torture (para. 45). With respect
to the merits of a communication submitted under article 22 of the Convention, the burden
of proof is upon the author of the communication, who must present an arguable case, that is,
submit substantiated arguments showing that the danger of being subjected to torture is
foreseeable, present, personal and real (para. 38). The Committee also recalls that it gives
considerable weight to findings of fact made by organs of the State party concerned, however,
it is not bound by such findings, as it can make a free assessment of the information available
to it in accordance with article 22 (4) of the Convention, taking into account all the
circumstances relevant to each case (para. 50).
8.5
The Committee notes the State party’s contention that the complainants have not
expressly claimed in the present communication that they are at risk of treatment contrary to
article 3 of the Convention due to the general security situation in Afghanistan and that the
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situation there has not been deemed such that there is a general need to protect all
asylum-seekers from the country. The Committee also notes the complainants’ argument that,
in the present case, the general security situation in Afghanistan should be considered a
cumulative factor in the assessment of the risk of treatment contrary to the Convention. The
Committee recalls that the occurrence of human rights violations in the complainants’
country of origin is not, in itself, sufficient for it to conclude that the complainants would
face a personal risk of being tortured.23 In the present case, the Committee considers that
there is a need to consider the general human rights situation in Afghanistan in the current
context, which has significantly changed since the takeover of the country by the Taliban.
The Committee observes that the Migration Agency, considering the new developments in
Afghanistan following the Taliban takeover, decided, on 16 July 2021 to halt all deportations
to Afghanistan.24
8.6
The Committee notes the complainants’ contention that the migration authorities did
not properly assess the best interests of the child in the case of H.S., who was minor at the
time of the asylum application. The Committee also notes that, according to the complainants,
the authorities should make an individual assessment of plausible protection grounds
concerning the child proprio motu, separate from the parents, since, in the case of H.S., there
is an obvious risk of forced marriage in Afghanistan, as a majority of marriages are arranged,
which was never mentioned in the relevant decisions. The Committee also notes the State
party’s argument that, in accordance with domestic law, the migration authorities paid due
regard to the principle of the best interests of the child and systematically gathered and
described relevant facts and analysed the consequences of a potential expulsion for the
children on their health and development. The Committee considers that, in the present case,
the fact that the complainants include a young girl is also a factor that should be considered
by the migration authorities in their assessment.
8.7
In assessing the risk of torture, the Committee notes the complainants’ claims that
they were previously threatened by the former husband of N.S. following a forced marriage
in Afghanistan. The Committee also notes that the State party’s migration authorities
assessed that N.S. was not able to plausibly demonstrate that her forced marriage was genuine
or there was a threat against her in Afghanistan because she is a woman. The Committee
notes the complainants’ contention that the migration authorities, when examining the
asylum claim, have not attached sufficient weight to the particular circumstances of N.S. The
Committee also notes the complainants’ argument that the particular risk factors for N.S. are
the gender issues, including stigma, honour crimes and violence, that a single divorced
woman who left her husband could be subjected to. The Committee considers that, given the
current situation in Afghanistan, removing an entire family, including an 8-year-old girl and
a divorced woman who claims that she would be at risk of persecution because of her forced
marriage, without further assessment would be contrary to the provisions of article 3 of the
Convention.
8.8
The Committee notes the complainants’ allegation that, due to their conversion from
Islam to Christianity, they fear that they will face additional risks of being subjected to the
death penalty, torture, ill-treatment or persecution if deported. The country information
clearly supports such a view; individuals who have converted to Christianity face the risk of
torture and other forms of inhuman and degrading treatment in Afghanistan. The Committee
also notes that the State party does not contest that individuals who return to Afghanistan
after having renounced their Muslim beliefs or converted during an asylum process run a real
risk of persecution, warranting international protection. However, the Committee notes the
State party’s argument that, in the present case, the migration authorities concluded that the
complainants had not plausibly demonstrated that their conversion was genuine and that they
were at risk of being ascribed any Christian beliefs that would put them at risk upon return
to Afghanistan. The State party also argues that the complainants failed to substantiate their
claim that they would be at risk of persecution by the Afghan authorities. The State party
23 K.S. v. Australia (CAT/C/77/D/982/2020), para. 7.5.
24 Swedish Refugee Law Centre, Country Report: Sweden – Update 2021 (Asylum Information
Database, 2022), p. 11, available at https://asylumineurope.org/wp-content/uploads/2022/05/AIDA-
SE_2021update.pdf.
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contends that the complainants did not make a credible case before the Migration Court25 and
the Migration Agency26 that their conversion was genuine and they would be ascribed a
Christian religious affiliation if returned to Afghanistan.
8.9
The Committee notes the State party’s objections that the complainants have not
convincingly explained why they presented the fact of their conversion to Christianity in
Sweden only weeks after their asylum investigations were held, during which they claimed
to be novices with limited knowledge of Christianity. The Committee observes that, from the
date when the complainants’ claim regarding their conversion was assessed27 to the date of
the consideration of the current complaint under the new circumstances in Afghanistan, their
practice of Christianity may have grown and the risk for Christian converts may have become
more serious. In that regard, a new examination of the complainants’ claims may circumvent
any risk of torture and inhuman treatment upon return to Afghanistan.
8.10
The Committee considers that, when asylum-seekers submit that they have converted
after their initial asylum requests have been dismissed, it may be reasonable for an in-depth
examination of the circumstances of the conversion to be carried out by the authorities.28 In
addition, regardless of the sincerity of the conversion, the test remains whether there are
substantial grounds for believing that such a conversion may have serious adverse
consequences in the country of origin so as to create a real risk of irreparable harm, such as
that contemplated by article 3 of the Convention. Therefore, even when it is found that a
reported conversion is not sincere, the authorities should proceed to assess whether, in the
circumstances of the case in question, the behaviour and activities of the asylum-seekers in
connection with their conversions or convictions could have serious adverse consequences
in the country of origin so as to put them at risk of irreparable harm.29
8.11
In the present case, the Committee observes that the State party does not contest that
individuals who return to Afghanistan after having renounced, or after having been perceived
to renounce, their Muslim beliefs or converted during an asylum process face a real risk of
persecution and punishment, warranting international protection. The Committee notes that
the complainants fall within that risk category. The Committee considers that, owing to the
complainants’ exposure to multiple risk factors, they would face serious adverse
consequences in the country of origin that would put them at risk of irreparable harm.
8.12
In that connection, the Committee recalls that States parties should give sufficient
weight to the real and personal risk that a person might face if deported and considers that it
was incumbent upon the State party to carry out an individualized assessment of the risk that
the complainants, with multiple risk factors, would face in Afghanistan. The Committee
considers that the risk that the complainants would face if returned to Afghanistan is
exacerbated by the fact that they are particularly at risk of being targeted by the former
husband of N.S., who had threatened the entire family.
9.
In the light of the foregoing, the Committee, acting under article 22 (7) of the
Convention, concludes that, recognizing that it is not clear whether there is a present risk of
expulsion of the complainants by the State party, it would be inconsistent with the obligations
of the State party under article 3 of the Convention30 if it proceeded to expel the complainants
on the basis of the decisions taken by the asylum authorities of the State party with regard to
the risk factors in Afghanistan, as the risk factors that existed at the time those decisions were
taken have changed.
10.
The Committee, reminding the State party of its obligations under article 3 of the
Convention, invites the State party to review the complainants’ asylum application, taking
into account the new circumstances that followed the takeover of Afghanistan by the Taliban
25 Decision of the Malmö Migration Court dated 4 January 2019.
26 Decisions of the Migration Agency dated 26 October, 30 October and 10 November 2017.
27 In 2017.
28 Guidelines on International Protection: Religion-Based Refugee Claims under Article IA (2) of the
1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, para. 35.
29 Q.A. v. Sweden, para. 9.5; and F.G. v. Sweden, para. 156.
30 A.A. v. Sweden (CAT/C/72/D/918/2019), para. 10.
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in 2021 and in the light of the State party’s obligations under the Convention and the present
decision.31
11.
Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party
to inform it, within 90 days of the date of transmittal of the present decision, of the steps it
has taken to respond to the above observations.
31 Ibid., para. 11.