CAT - A.A. v. Sweden, Communication No. 918/2019, 24/11/2021

Facts:

The complainant, AA, is an Afghan national who was raised in Iran. His parents fled Afghanistan when AA was young due to death threats they received over a land dispute. AA never obtained Iranian citizenship and was unable to attend school growing up. In 2015, Iranian police arrested AA and his brother, asserting that they must fight in Syria or be deported to Afghanistan. Due to the land dispute in Afghanistan, the family could not risk returning, and therefore, fled to Sweden and applied for asylum. The family was initially refused asylum. In the meantime, however, AA and his brother joined a Church in Sweden and were baptised as Christians. They also joined a band of Christian Dari’s and performed in churches throughout northern Sweden.

AA and his brother added their conversion to Christianity to their asylum claims, stating that this placed them at risk if there were returned to Afghanistan. The claims were heard separately, and AA’s brother was granted asylum. His parents were also awarded temporary residence permits based on the father’s terminal cancer diagnosis. AA’s claim, however, failed and an order for his deportation was issued. He appealed this decision, asserting that the State would violate his rights under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) if they deported him back to Afghanistan.

His appeals to the Swedish Migration Board and the Migration Court failed. AA later began to receive death threats on his Instagram for videos he was posting about his Christian band performances. He made an application to the migration authorities to have these threats examined in the context of his asylum claim. The Court believed that the facts presented were not new circumstances but rather additions to the pre-existing claim. Therefore, his application was rejected, his stay on removal lifted and his permission to appeal denied.

Decision & reasoning:

Consideration of admissibility

The Committee found that AA’s complaint concerning Sweden’s breach of Article 3 of The Convention should be considered. As per article 22(5)(b) of the Convention, the Committee shall not consider any complaint from an individual unless it has ascertained that the individual has exhausted all available domestic remedies in relation to the claims submitted therein. In this case, it is undisputed that AA has exhausted all domestic remedies in Sweden [para 7.2].

Consideration of merits

The issue before the Committee is whether the return of AA to Afghanistan would constitute a violation of Sweden’s obligation under article 3 of the Convention not to expel or return a person to a State where there are substantial grounds for believing they would be in danger of being subjected to torture.

To begin with, the Committee clarified that an assessment of article 3(2) of the Convention requires an analysis of whether the individual concerned would be personally at a foreseeable real risk of being subjected to torture in the country to which he would be returned. As such, the existence of a pattern of gross or mass violations of human rights in a country does not itself constitute a sufficient reason for determining a person would be subjected to torture, additional grounds must be adduced to show that the individual would personally be at risk [para 7.3].

In this case, the Committee finds that, given the treatment of Christian converts in Afghanistan, AA would be at serious risk of treatment contrary to the Convention if returned. Concerning whether AA’s conversion to Christianity is genuine, the Committee also finds that AA suffered procedural flaws during his asylum process, resulting in an unfair assessment of his faith and asylum claim.

The Committee observes that Swedish authorities failed to consider AA’s educational and cultural context, against which expectations of AA’s ability to articulate and understand complex theological concepts should have been framed. For instance, when asked in his interview "is there something in Christianity, equivalent to the crescent in Islam that feels important to you?” AA answered, “the red cross helping people”. This question was extremely misleading and took no account of the cultural context regarding the perception of the red cross, which has Christian roots, or that the Iranian Red Crescent Society is exactly equivalent to the Red Cross [para 7.13].

Moreover, when AA arrived in Sweden, he expressed in his interview that he suffered from anxiety, depression, hopelessness, and disappointment. This statement should have triggered an individual psychiatric assessment to ascertain whether had suffered trauma or had any mental health challenge which would affect his ability to give clear evidence [para 7.12].

Further, concerning the death threats AA was receiving on his Instagram, the Committee concludes that Swedish authorities failed to enquire into the actual or likely impact of AA’s social media activity and the real risk it posed on his life if returned to Afghanistan. [para 7.15-16].

As such, the Committee considers that the Swedish authorities failed in its duty to undertake an individualized assessment of the personal and real risk that the complainant would face in Afghanistan. Therefore, the deportation of AA to Afghanistan would constitute a breach of article 3 of the Convention by the Sweden [para 8-9].

Outcome:

The Committee concludes that the deportation of the complainant to Afghanistan would constitute a breach of article 3 of the Convention by the State party. The State party is, therefore, required by article 3 of the Convention to reconsider the complainant’s asylum application in the light of its obligations under the Convention.

Observations/comments:

During AA’s appeal to the Migration Court, the Chair of the Migration Court issued a dissenting opinion in which she recognized the difficulties inherent in assessing the genuine basis of a person’s religious conviction. She also noted that AA had exhibited such a level of knowledge of Christianity as could be expected from a person with his level of education. She made particular reference to his understanding of the contrast between Islam and Christianity in the treatment of women, as well as his motivation to share his faith with others. She found no reason to question the genuineness of the complainant’s beliefs and voted to grant him refugee status and temporary residence.

Other sources:

Rules of Procedure of the Committee against Torture, CAT/C/3/Rev.6 – Rules 113(b) and 114(1).

Committee against Torture, General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, CAT/C/GC/4, 4 September 2018.

·        H.I.A. v. Sweden, Communication No. 216/2002

·        E.J.V.M. v. Sweden, Communication No. 213/2002

·        A.R v. the Netherlands, Communication No. 203/2002

·        Arthur Kasombola v. Canada, Communication No. 343/2008

·        Z.S. v. Sweden, Communication No. 277/2005

·        N.S. v. Switzerland, Communication No. 356/2008

·        S.K et al v. Sweden, Communication No. 550/2013

·        G.K. v. Switzerland, Communication No. 219/2002

·        L.A. v. Sweden (CAT/C/66/D/729/2016)

·        M.S. v. Denmark (CAT/C/55/D/571/2013)

·        H.O. v. Sweden, Communication No. 178/2001