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.24-14886 (E) 180924 190924
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1119/2022*, **
Communication submitted by:
R.G. (represented by counsel, Rebecca
Ahlstrand)
Alleged victim:
The complainant
State party:
Sweden
Date of complaint:
17 January 2022 (initial submission)
Document references:
Decision taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted
to the State party on 27 January 2022 (not issued
in document form)
Date of adoption of decision:
12 July 2024
Subject matter:
Deportation of the complainant to Cameroon
Procedural issue:
Level of substantiation of claims
Substantive issue:
Risk of torture upon return to country of origin
(non-refoulement)
Article of the Convention:
3
1.1
The complainant is R.G., a national of Cameroon born in 1991. At the time of
submission, her request for asylum in Sweden had been rejected and she was facing
deportation to Cameroon. The complainant claims that, if Sweden were to proceed with her
deportation, it would be in violation of its obligations under article 3 of the Convention. The
State party has made the declaration pursuant to article 22 (1) of the Convention, effective
from 26 June 1987. The complainant is represented by counsel.
1.2
On 27 January 2022, pursuant to rule 114 (1) of its rules of procedure, the Committee,
acting through its Rapporteur on new complaints and interim measures, requested the State
party not to deport the complainant to Cameroon while her complaint was being considered
by the Committee.
Factual background
2.1
The complainant applied for asylum in Sweden on 27 January 2020, declaring that, in
the case of return to Cameroon, she risked persecution due to her sexual orientation. She
claimed that, as a lesbian, she belonged to a social group that is illegal and not accepted in
* Adopted by the Committee at its eightieth session (8–26 July 2024).
** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,
Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.
United Nations
CAT/C/80/D/1119/2022
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
20 September 2024
Original: English
CAT/C/80/D/1119/2022
2
GE.24-14886
Cameroonian society. At her interview on 9 November 2020 with the Swedish Migration
Agency,1 the complainant explained she had realized that she was lesbian after she was raped
on 17 December 2011. She had been in a same-sex relationship since 2015. On 22 February
2018, after her relationship had been brought to the attention of the authorities by her family
and members of her community, she and her partner were assaulted at their home by a group
of people. When the police came, they arrested the complainant and her partner. The
complainant was detained for 11 months pending trial2 and subjected to assault, torture and
inhuman treatment and punishment.3
2.2
On 23 November 2020, the complainant, through a legal representative, submitted
corrections to the interview minutes, alleging that they did not reflect accurately how she had
come to realize and admit that she was attracted to girls and women and that she was lesbian
and claiming that the Swedish Migration Agency had focused its understanding of the
complainant’s sexuality on the fact that she was raped in 2011, got pregnant and was
traumatized by the sexual violence that she had experienced. The complainant also pointed
out other inaccuracies regarding the same-sex relationship that she had been in for several
years and provided, in addition to corrections, a health certificate from 20 November 2020,4
a certificate of membership in a Swedish LGBTQI+ organization, a certificate of
participation in activities for asylum-seekers and medical documents from a hospital.5
2.3
On 26 February 2021, the Swedish Migration Agency rejected the complainant’s
application for asylum and decided to expel her to Cameroon. The Migration Agency
admitted, based on the available country information, that LGBTQI+ persons in Cameroon
could be subjected to persecution because of their sexual orientation. It therefore considered
that it needed to assess whether the complainant had plausibly demonstrated that she was a
member of the LGBTQI+ social group. To do so, the Migration Agency referred to the
guidelines of the Office of the United Nations High Commissioner for Refugees (UNHCR)
for investigating grounds for asylum relating to sexual orientation,6 according to which, to
assess an asylum-seeker’s sexual orientation, the investigator should focus on the applicant’s
personal perceptions, feelings, experiences of difference, stigma and shame. The Migration
Agency noted that UNHCR proposes that investigators ask questions about the applicant’s
self-image and identity, experience of behaviour that deviates from the norm, family
relationships, other relationships and religion. As the complainant had cited her sexual
orientation as grounds for her asylum application, the Migration Agency considered that it
must determine whether her account of her sexual orientation was reliable. In that context, it
stressed that it was not a matter of assessing the complainant’s sexual orientation, but rather
of assessing whether she had plausibly demonstrated it through her account. For the
Migration Agency, that assessment does not in itself deviate from the one it often conducts
regarding ethnicity or political or religious affiliation. The Migration Agency therefore
considered that assessing an account of an applicant’s sexual orientation was primarily a
question of reliability and recalled that the assessment of reliability in such cases needed to
be undertaken in an individualized and sensitive way by exploring elements surrounding the
applicant’s personal perceptions, feelings and experiences of difference, stigma, and shame,
rather than focusing on sexual practices. The applicant’s own account was seen as the primary
and often the only source of evidence.
2.4
The Migration Agency thus noted that the complainant had not submitted any written
evidence to support her claim that she had been arrested or had received physical injuries.
The fact that she had been diagnosed with post-traumatic stress disorder did not prove her
invoked need for protection and her membership in a Swedish LGBTQI+ organization also
1 In the presence of the public counsel and an interpreter, whom the complainant confirmed she
understood.
2 She alleged that her cousin had helped her to escape from prison and flee the country.
3 No further details were provided.
4 On file, issued by a health-care counsellor and attesting to post-traumatic stress disorder.
5 The complainant does not specify, however, to what medical documents she was referring or what
hospital.
6 UNHCR, Guidelines on International Protection No. 9: claims to refugee status based on sexual
orientation and/or gender identity within the context of article 1A (2) of the 1951 Convention and/or
its 1967 Protocol relating to the Status of Refugees, 23 October 2012.
CAT/C/80/D/1119/2022
GE.24-14886
3
did not prove that she was homosexual. The Migration Agency then noted that the
complainant had not been able to give an authentic and detailed account of how she came to
realize that she was lesbian while being raised in a Muslim family, in a country where
homosexual relationships are illegal and not socially accepted. She was also not able to reflect
on living as a homosexual and the risks that it involves, although she had already been in a
homosexual relationship. The Migration Agency considered that the additions and
adjustments submitted on 23 November 2020 seemed to be an attempt to make the
complainant’s story more credible, given that she had already been given the opportunity to
give details during the asylum investigation, without pointing to issues with the interpretation.
The complainant was also not able to recount the 2018 assault in a detailed and authentic way
or to give a credible account of her escape from prison and her legal departure from
Cameroon – without attracting attention – given the serious crime of which she had been
accused.
2.5
The complainant appealed before the Luleå Administrative Court. During an oral
hearing,7 she claimed that she had been able to provide detailed explanations about her
sexuality, but that no questions had been posed to her regarding her imprisonment and the
inhuman treatment to which she was subjected.
2.6
On 21 June 2021, the Luleå Administrative Court admitted that the complainant could
not be expelled to Cameroon if she plausibly demonstrated that she was homosexual. It
confirmed, however, the decision of the Swedish Migration Agency on similar grounds,
considering that the complainant had not sufficiently proved her sexual orientation and the
risk of persecution due to her actual or attributed sexual orientation. In particular, the
Administrative Court noted that the complainant had altered her account of whether she had
reflected on her sexual orientation before being raped. While before the Swedish Migration
Agency, the complainant had repeatedly declared that, after being raped, she had started to
develop a hatred towards men and become attracted to women – declaring expressly that,
before the rape, she had not had romantic feelings towards women – she declared before the
Administrative Court, both in writing and orally, that she had questioned her sexuality and
developed feelings for women even before the rape, around the age of 10 or 11 years. The
Court did not accept her explanation, however, that she had not declared this before the
Migration Agency because she had misunderstood the questions and was not well when she
arrived in Sweden. The Court also noted that the complainant had not been able to expand
upon or reply to follow-up questions in an authentic way, which made her account appear
rehearsed.
2.7
On 16 August 2021, the Migration Court of Appeal rejected the complainant’s
application for leave to appeal.
2.8
On 7 September 2021, the complainant filed an application for impediments to
enforcement by providing additional evidence, including a Cameroonian newspaper article,
dated 12 February 2020, containing her name and photo and reporting on her arrest on
charges of lesbianism and her escape from prison. As a valid and acceptable excuse for not
having previously submitted the newspaper article from Cameroon, the complainant stated
that she suffered from post-traumatic stress disorder. The complainant attached additional
certificates regarding her mental health and requested to be allowed to submit further
documentation. On 14 September 2021, the Migration Agency granted the request, but did
not receive any supplementary documents.
2.9
On 16 September 2021, the Swedish Migration Agency dismissed her application for
impediments to enforcement because the protection needs based on the complainant’s sexual
orientation had already been examined. It found that no new circumstances had emerged that
would constitute impediments to enforcement under the Aliens Act. It noted that the question
of her grounds for protection relating to her sexual orientation had been examined previously
by the Migration Agency and by the Migration Court and that, as recently as 21 June 2021,
the Migration Court had found that she had not given a reliable account of her claimed sexual
orientation and had not plausibly demonstrated that she risked persecution on the grounds of
actual or ascribed sexual orientation. Regarding the complainant’s health condition, the
7 In the presence of the public counsel and an interpreter.
CAT/C/80/D/1119/2022
4
GE.24-14886
Migration Agency considered that her mental health condition was not so serious that
enforcement was not practically possible or unreasonable. It also noted that she had not
produced any current medical certificate and that the certificates submitted had not been
issued by a doctor, but by a health-care counsellor.
2.10
The complainant appealed, producing statements from a licensed psychologist, a
psychiatrist, a forensic pathologist and a counsellor, which confirmed that she suffered from
post-traumatic stress disorder and that the probable cause was that she had been subjected to
abuse in her country. She argued that this constituted new evidence that she had been
subjected to torture in Cameroon, which she could not present before due to her health
condition. Her mood had deteriorated towards the end of 2021, due to the trauma she had
suffered, as evidenced by certificates, and her condition was deemed life-threatening. Her
trauma and diagnosed post-traumatic stress disorder may have affected her memory,
concentration and ability to talk about the reasons for which she was requesting protection.
She further claimed that the new evidence demonstrated that persistent impediments to the
enforcement of the deportation decision existed and that a new, thorough examination of her
case was required to ensure that the principle of non-refoulement was not violated.
2.11
On 8 November 2021, the Stockholm Administrative Court dismissed her appeal. It
did not question that the complainant had suffered the injuries stated in the forensic medical
opinion but considered that the account of how the injuries had occurred related to her
previous grounds for asylum, which had already been examined. In the Court’s view, the
forensic medical opinion and other medical documentation that the complainant had
produced could not be considered anything other than additions and new evidence to support
the already examined grounds for asylum. The same applied to the newspaper article and the
testimonial from the LGBTQI+ organization. The Court noted that the available medical
documentation confirmed that the complainant’s health condition was life-threatening but
considered that it was not sufficient to conclude that her deportation would violate article 3
of the Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights).
2.12
On 23 November 2021, the Migration Court of Appeal refused leave to appeal.
Complaint
3.1
The complainant submits that, if she is returned to Cameroon, she faces a real risk of
persecution, in violation of article 3 of the Convention.
3.2
The complainant contests the findings of the Swedish migration authorities, in
particular the fact that her evidence was dismissed. She claims that, in her subsequent
application for impediments to enforcement of her deportation, she had submitted evidence,
including from two specialized doctors, that showed that it was likely that she had been
subjected to torture and ill-treatment. A newspaper article with her name and photo also
confirmed that she had been imprisoned in Cameroon. Given that the Migration Court did
not question that she was suffering from mental health issues, she considers that past
persecution or injury is a serious indication that her fear of persecution is well-founded and
that a real risk exists. By rejecting her request for a new investigation after producing new
evidence, the State party has violated the principle of non-refoulement and its duty to
investigate further.
3.3
The complainant submits that the Swedish Migration Agency’s legal positions on
medical investigations of alleged injuries8 state that, if applicants, during the asylum process,
invoked injuries due to torture and, in an application for impediments to enforcement, submit,
as the only new circumstance, a medical certificate stating that the injuries may be a
consequence of torture, a retrial should be granted unless certain exceptions apply. In the
present case, none of the exceptions set out are relevant and the Migration Court did not
consider the question of whether any of the exceptions were applicable but merely referred
to the fact that the certificate related to previous circumstances and constituted a modification.
8 Available at https://lifos.migrationsverket.se/dokument?documentSummaryId=45449 (in Swedish).
CAT/C/80/D/1119/2022
GE.24-14886
5
For the complainant, this is an extremely serious shortcoming in the handling and assessment
of the complaint.
3.4
The complainant declares that she had a valid excuse for not being able to provide the
new evidence sooner and for having faced difficulties during the oral investigation in
November 2020 and the subsequent hearing before the Luleå Administrative Court. She
recalls that, in her application for impediments to enforcement, she invoked, as new
circumstances, a medical certificate stating that her injuries might be a consequence of torture.
She therefore contests the Swedish authorities’ refusal to re-examine her case despite clear
and multiple evidence of the torture she suffered. For the complainant, the Swedish
authorities have not complied with their duty to investigate.
State party’s observations on admissibility and the merits
4.1
On 31 August 2022, the State party challenged the admissibility of the complaint,
arguing that it was manifestly unfounded because it failed to rise to the minimum level of
substantiation.
4.2
On the merits, the State party referred to the decisions issued at the domestic level to
hold that there was no reason to conclude that they were inadequate or that the outcome of
the domestic proceedings was in any way arbitrary or amounted to a denial of justice. It also
recalled that Cameroon was a party to the Convention and to the International Covenant on
Civil and Political Rights. While not wishing to underestimate the concerns that may
legitimately be expressed regarding the human rights situation in Cameroon, the State party
recalls that the situation does not in itself suffice to establish that the complainant’s expulsion
would be contrary to article 3 of the Convention.
4.3
The State party notes that the complainant has had several opportunities to explain the
relevant facts and circumstances in support of her claim and to argue her case, both orally
and in writing, before the Swedish Migration Agency and the Migration Court, which are
specialized bodies with particular expertise in the field of asylum law and practice. It then
notes that the medical reports produced by the complainant do not contain any assessment of
her alleged injuries. While the certificates state that the complainant is suffering from mental
health issues, which has not been contested by the Swedish migration authorities, they do not
assess the origin of the complainant’s health status. The State party also notes that the
certificates are called “statement from doctor” and contain several diagnoses, even though
they were not issued by a doctor.
4.4
Concerning the medical report from a psychiatrist, the State party notes that the report
is based on a single personal examination of the complainant. In addition to that examination,
the assessment is based on written and oral information from the complainant’s representative.
As regards the certificate from a psychologist, the State party notes that it was issued by a
psychologist, not a doctor, after an initial examination. Furthermore, the psychologist does
not make any assessment of the alleged injuries.
4.5
As regards the report from the forensic pathologist, the State party notes that the
pathologist has not met and examined the complainant in person. It follows from the report
that the assessment is based on an undated written statement from the representative and
20 photographs. There is no assessment of the complainant’s psychological symptoms in
relation to the alleged torture in the report.
4.6
The State party then points to the lack of credibility of the complainant’s claim. While
observing that her state of mental health may account for some contradictions and
insufficiencies in her account to the migration authorities, the State party considers that it
does not provide a satisfactory explanation for the gaps and inconsistencies identified by the
Swedish authorities, which concern all the core elements of her account.
4.7
Finally, the State party refers to the news article produced by the complainant and her
allegation that the article confirms that she was imprisoned in Cameroon. It firstly notes that
CAT/C/80/D/1119/2022
6
GE.24-14886
the complainant has failed to make her identity probable.9 The name mentioned in the article
can therefore not be linked to her personally. Furthermore, the article, dated 12 February
2020, was not invoked until September 2021, that is, one month after the decision to expel
the complainant became final. Against that background and the lack of credibility of the oral
account and the lack of other written evidence, the State party maintains the Swedish
migration authorities’ assessment that the invoked news article does not make probable that
there is a real risk of the complainant being subjected to torture or other ill-treatment. In that
context, it can also be noted that fake news articles are known to appear in Cameroon for the
purpose of being used in asylum processes.10
Complainant’s comments on the State party’s observations on admissibility and
the merits
5.1
On 31 March 2023, the complainant submitted her comments on the State party’s
observations, referring to the deteriorating situation for LGBTQI+ persons in Cameroon.11
She argues that the Swedish migration authorities have not adequately assessed all the facts
and evidence, which amounts to a denial of justice. She claims that the risk of persecution
cannot be assessed unless her case is re-examined. She also mentions that the public counsel
submitted many corrections and additions to the interview minutes, which were never taken
into consideration by the Migration Agency because they were considered to be too extensive.
5.2
As to the medical evidence, the complainant confirms the State party’s allegation that
two of the certificates produced were not issued by a doctor. She mentions that the
psychologist examined her mental health and concluded that she showed clear indications of
trauma and post-traumatic stress disorder due to events in her home country. Then she
clarifies that she was seen by the psychiatrist only once because of the restrictions linked to
the coronavirus disease (COVID-19) pandemic. Regarding the Swedish authorities’
allegation that the pathologist’s forensic report was questionable since the pathologist had
not met the complainant, she submits that the doctor had worked for the Swedish National
Board of Forensic Medicine, where she regularly used the same method: she examined photos,
instead of meeting patients. The complainant also refers to the jurisprudence of the European
Court of Human Rights12 and of the Committee13 to claim that the medical evidence provided
in the asylum proceedings demonstrate a causal link between her injuries, her mental health
and the ill-treatment she suffered.
5.3
The complainant contests the authorities’ findings as to her credibility. While the
Luleå Administrative Court alleged that she had changed her story about when she had first
had romantic feelings for persons of the same sex, that was one of the assumptions that she
had corrected in the minutes, which were disregarded. Nonetheless, the complainant
considers that this cannot be claimed to be of such core importance as to result in the disregard
of her overall story. It could have merited an additional interview to provide her with the
opportunity to address the stated inconsistencies but such an additional interview was never
held at the Migration Agency. The complainant invokes the Swedish Migration Court of
Appeal’s guiding case law, which states that, regardless of how other parts of the asylum
story are assessed, torture injuries should be assessed as reliable if there is nothing to
contradict that the individual received them in the manner stated.14
9 Both the Swedish Migration Agency and the Luleå Administrative Court have ruled that the
complainant did not plausibly demonstrate her identity because the identification card that she
produced was considered to be of a simple nature and easy to falsify or manipulate.
10 The State party refers to Canada: Immigration and Refugee Board of Canada, “Cameroon: corruption
of journalists; the falsification of newspaper articles for the purpose of refugee claims”, 13 April
2012, available at https://www.refworld.org/docid/4f9e37342.html.
11 The complainant referred to Human Rights Watch, World Report 2022: Events of 2021, Keynote,
“Cameroon: events of 2021”, available at https://www.hrw.org/world-report/2022/country-
chapters/cameroon.
12 European Court of Human Rights, R.C. v. Sweden, Application No. 41827/07, Judgment, 9 March
2010, para. 53.
13 Mondal v. Sweden (CAT/C/46/D/338/2008), paras. 7.6 and 7.7.
14 Migration Court of Appeal, MIG 2014:21, UM3739-14, Judgment, 23 September 2014, available at
https://lagen.nu/dom/mig/2014:21 (in Swedish).
CAT/C/80/D/1119/2022
GE.24-14886
7
5.4
The complainant declares that the news article that she produced supports her oral
statements that she was imprisoned in Cameroon. She considers that the fact of submitting
written evidence later than its date of issuance does not demonstrate in and of itself that the
evidence is unreliable. Furthermore, the fact that her oral statements were not found to be
credible and that there was a lack of other written evidence should not undermine the
evidential value of the article.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
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.
6.2
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 that the complainant has exhausted all available domestic
remedies. The Committee therefore finds that it is not precluded from considering the
communication under article 22 (5) (b) of the Convention.
6.3
The Committee notes that the State party challenges the admissibility of the
complainant’s claims under article 3 on the basis that they are manifestly unfounded, given
that the complainant has not substantiated the existence of substantial grounds for believing
that she would face a foreseeable, present, personal and real risk of torture if she were to be
returned to Cameroon. The Committee considers, however, that the complainant has
sufficiently substantiated her claims for the purposes of admissibility, on the basis of article 3
of the Convention, regarding her risk of being subjected to torture and ill-treatment if returned
to Cameroon. Accordingly, it declares the communication admissible and proceeds with its
consideration of the merits.
Consideration of the merits
7.1
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.
7.2
In the present case, the issue before the Committee is whether the return of the
complainant to Cameroon would constitute a violation of the State party’s obligation 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.
7.3
The Committee must evaluate whether there are substantial grounds for believing that
the complainant would be personally in danger of being subjected to torture upon return to
Cameroon. 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 determination is to establish whether the complainant
would be personally at a foreseeable and real risk of being subjected to torture in the country
to which he or she 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 a particular person would be in danger of being subjected to
torture on return to that country; additional grounds must be adduced to show that the
individual concerned would be personally at risk. Conversely, the absence of a consistent
pattern of flagrant violations of human rights does not mean that a person might not be
subjected to torture in his or her specific circumstances. Moreover, the Committee notes that,
since Cameroon has made the declaration provided for in article 22 (1) of the Convention
and has also accepted the Optional Protocol to the International Covenant on Civil and
Political Rights, in the event of a violation of the complainant’s rights under the Convention
CAT/C/80/D/1119/2022
8
GE.24-14886
or under the Covenant in that country, she would have the legal option of recourse to the
Committee or to the Human Rights Committee for protection of any kind.
7.4
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 risk of torture
must be assessed on grounds that go beyond mere theory or suspicion. Although the risk does
not have to be shown to be highly probable, the burden of proof generally falls on the
complainant, who must present an arguable case establishing that he or she faces a
foreseeable, real and personal risk.15 The Committee also recalls that, in accordance with its
general comment No. 4 (2017), it gives considerable weight to findings of fact made by
organs of the State party concerned, while, at the same time, it is not bound by such findings
and instead has the power, under article 22 (4) of the Convention, to make a free assessment
of the information available to it, taking into account all the circumstances relevant to each
case.16
7.5
In the present case, the Committee notes that the complainant maintains that she fears
for her life should she be returned to Cameroon because she considers that she will be targeted
by the authorities because of her sexual orientation. To support her argument that she has
already suffered torture and ill-treatment on those grounds, she produced a copy of a news
article and medical certificates that attest, in particular, that she suffers from post-traumatic
stress disorder. The Committee observes that those documents have been produced before
the Swedish administrative and judicial authorities. On the one hand, and without questioning
the fact that the complainant had suffered injuries, the authorities considered that the cause
of those injuries – State agents – had not been demonstrated. On the other hand, the
Committee notes the State party’s argument regarding not only the authenticity of the news
article produced by the complainant but also that she failed to prove her identity in domestic
proceedings, both in the first instance and in the appeal proceedings. The complainant failed
to provide a reasonable explanation for the late submission of the article in the asylum
proceedings or to find ways to prove that it was genuine17 or to demonstrate that she is the
person referred to in the article. In those conditions, the Committee is not persuaded that the
press article invoked by the complainant refers to herself. The Committee also observes that
the complainant has provided no evidence to challenge the specific arguments given by the
State party. In particular, the complainant provided no evidence to substantiate her assertions
that she was arrested by the Cameroonian authorities and that a trial was pending against her.
7.6
In that regard, the Committee notes that, even if it were to accept the argument that
the complainant was subjected to torture and ill-treatment in the past because of her sexual
orientation, the question that arises is whether she would be at risk of torture in Cameroon at
the present time if she were forcibly returned. The Committee also notes that, according to
its practice, the onus is generally on the complainant to make an arguable case.18
7.7
The Committee notes that the State party’s authorities have called into question the
credibility of the complainant’s claims regarding her detention and her sexual orientation.
They did not deny existing persecution in Cameroon based on sexual orientation – and even
admitted that the complainant could not be expelled if she plausibly demonstrated that she
was homosexual – but expressed doubts as to the credibility of her allegations. In that sense,
even if the Committee is aware of and has expressed concern about instances of violence and
discrimination in Cameroon on the grounds of sexual orientation and gender identity,19 it
reiterates that the occurrence of human rights violations in a complainant’s country of origin
15 See, for example, A.R. v. Netherlands (CAT/C/31/D/203/2002), para. 7.3; and Dadar v. Canada
(CAT/C/35/D/258/2004), para. 8.4.
16 General comment No. 4 (2017), paras. 11, 39 and 50.
17 P.S. v. Sweden (CAT/C/72/D/1000/2020), para. 7.6.
18 See, for example, Committee against Torture, S.L. v. Sweden, communication No. 150/1999,
para. 6.3; M.A.K. v. Germany (CAT/C/32/D/214/2002), para. 13.5; Zare v. Sweden
(CAT/C/36/D/256/2004), para. 9.3; C.A.R.M. et al. v. Canada (CAT/C/38/D/298/2006), para. 8.10;
and N.B.-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9.
19 CAT/C/CMR/CO/5, paras. 43 and 44; and CCPR/C/CMR/CO/5, paras. 13 and 14.
CAT/C/80/D/1119/2022
GE.24-14886
9
is not, in itself, sufficient for it to conclude that a complainant would face a personal risk of
being tortured there.20
7.8
The Committee notes that the complainant was given the opportunity to substantiate
and clarify her claims before the domestic authorities. On the basis of the evidence provided,
however, it has not been possible to confirm that the complainant demonstrated her sexual
orientation and thus to determine the existence of a personal, foreseeable, real and present
risk of being subjected to torture in the event of her return to her country of origin.21
7.9
In particular, the Committee notes that the main question before the Swedish
authorities was whether the complainant was able to demonstrate her sexual orientation rather
than focusing on whether she was indeed lesbian. In those circumstances, the Committee
notes that the domestic authorities relied on the UNHCR guidelines for investigating grounds
for asylum relating to sexual orientation when assessing the complainant’s allegations, which
recommend exploring elements around the applicant’s personal perceptions, feelings and
experiences of difference, stigma and shame.22 The Committee further notes that, according
to the UNHCR guidelines, ascertaining the applicant’s LGBTQI+ background is essentially
an issue of credibility.23 In the present case, the Committee notes that oral hearings were held
at both the first instance and appeal levels, which must have allowed the Swedish authorities
to investigate the complainant’s alleged sexual orientation and evaluate her credibility. The
Committee notes, however, that the Swedish authorities questioned the complainant’s
credibility. Thus, the Migration Agency considered that she had not been able to give an
authentic and detailed account of how she had come to realize that she was lesbian while she
was raised in a Muslim family in a country where homosexual relationships are illegal and
not socially accepted. She was also not able to reflect on living as a homosexual and the risks
that this involves, although she had already been in a homosexual relationship. The Luleå
Administrative Court also pointed to inconsistencies in her account and to the fact that she
was not able to explain those contradictions in a satisfactory manner. In addition, the
Committee notes that the complainant has not produced further evidence, such as statements
from her partner in Cameroon, or at least she has not explained why it was not possible to do
so.
7.10
In the light of the considerations above and on the basis of all the information
submitted to it by the complainant and the State party, including on the general situation of
human rights in Cameroon, the Committee considers that, in the present case, the information
in the file does not allow it to conclude that the decision of the domestic authorities was
arbitrary in finding that the complainant would not face a real, foreseeable, personal and
present risk of being subjected to torture if she were to be deported to Cameroon or that the
authorities of the State party failed to conduct a proper investigation into her allegations in
accordance with the UNHCR guidelines.
8.
The Committee, acting under article 22 (7) of the Convention, concludes that the
deportation of the complainant to Cameroon would not constitute a violation by the State
party of article 3 of the Convention.
20 H.S. v. Denmark (CAT/C/71/D/792/2016), para. 8.13. For similar conclusions of the Human Rights
Committee, see W.K. v. Canada (CCPR/C/122/D/2292/2013).
21 See, for example, M.K. v. Switzerland (CAT/C/60/D/662/2015), paras. 7.8 and 7.9; and
D.R. v. Switzerland (CAT/C/63/D/673/2015), paras. 7.8 and 7.9.
22 Guidelines on International Protection No. 9, para. 62.
23 Ibid.