Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2748/2016 * , **

Communication submitted by:A.B. (represented by counsel, Niels-Erik Hansen)

Alleged victim:A.B.

State party:Denmark

Date of communication:8 March 2016 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 14 March 2016 (not issued in document form)

Date of adoption of decision:22 March 2023

Subject matter:Deportation from Denmark to Pakistan

Procedural issues:Exhaustion of domestic remedies; substantiation of claims

Substantive issues:Non-refoulement; right to life; torture and ill-treatment

Articles of the Covenant:6, 7 and 13

Articles of the Optional Protocol:2 and 5 (2) (b)

1.1The author of the communication is A.B., a national of Pakistan born on 10 May 1983. His asylum application in Denmark was rejected and he risks being forcibly removed to Pakistan. He claims that this would violate his rights under articles 6 and 7 of the Covenant as he fears a risk to his life and persecution in Pakistan. The Optional Protocol entered into force for the State party on 23 March 1976. The author is represented by counsel.

1.2On 14 March 2016, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party to refrain from deporting the author to Pakistan while his case was pending before the Committee.

1.3On 17 August 2016, the State party requested suspension of the Committee’s consideration of the communication in view of the decision of 16 August 2016 by the Danish Refugee Appeals Board to re-examine the author’s asylum application. On 22 August 2016, the author’s counsel accepted the State party’s request for suspension. On 28 October 2016, the Committee, acting through its Special Rapporteurs on new communications and interim measures, decided to suspend the consideration of the communication until further notice.

1.4On 14 March 2017, the author’s counsel requested the Committee to lift the suspension of consideration of the communication, since, on 28 November 2016, the Refugee Appeals Board had upheld its decision of 1 March 2016 and rejected the author’s asylum application. The State party did not object to this request. On 4 April 2017, the Committee, acting through its Special Rapporteurs on new communications and interim measures, decided to lift the suspension.

Facts as submitted by the author

2.1The author, who is a Christian, owned and ran an Internet café in Akora Khattak, Pakistan, until 2009. The author received threatening letters from the local Qur’an school accusing his Internet café of being against sharia and therefore illegal. On 12 March 2009, a bomb exploded in the Internet café and the author subsequently decided to move with his family to Peshawar. He was assigned to All Saints Church in Peshawar and was a member of a small group of people supporting the maintenance and operation of the church. On 22 September 2013, two suicide bomb attacks were carried out in front of the church after the service, which resulted in the death of many people. The author survived, as he was inside the church at the time of the attacks. He provided assistance to the wounded until late that night.

2.2After these attacks, the author began working on a plan for the church members to guard the church premises. As a result, he received several anonymous threats via text message. On 16 March 2014, while the author and his friend were guarding the church before the service, they were attacked by unknown individuals who shot at them from a car. The author’s friend was hit and died. On the following day, the author received a phone call from an unknown person who told him that he had been lucky this time but that this would not be the case the next time.

2.3On 30 June 2014, the author fled Pakistan and sought asylum in Denmark on 7 August 2014 upon his arrival in that country. On 30 October 2015, the Immigration Service rejected his asylum application. The author appealed against that decision to the Refugee Board, which, on 1 March 2016, rejected his appeal on the grounds that the events described by the author reflected the generally difficult conditions for Christians in Pakistan. The Refugee Board found that the author had not been personally targeted in the shooting as he did not appear to have a special or high profile in the Christian congregation, and that he had never been visited in person in connection with his Christian activities, nor had he been threatened or assaulted except for receiving some threats by text message. It added that the bombing of the author’s Internet café in 2009 could not in itself justify asylum or protection, as the author had himself explained that the attack was directed against the activities of the Internet café and had taken place at night when no one was present. No threatening letter or the like had been addressed to the author after the explosion. The Refugee Board concluded that the general plight of Christians in Pakistan could not lead to a changed assessment, and that it could therefore not be assumed that the author’s departure was an indication of his persecution and that he would risk persecution upon being returned to Pakistan. The Refugee Board ordered him to leave the country by 8 March 2016 or risk being forcibly deported to Pakistan.

Complaint

3.1The author claims that removing him to Pakistan would violate his rights under articles 6 and 7 of the Covenant. He submits that religion is one of the grounds for protection under the Convention relating to the Status of Refugees, of 1951, as well as the Covenant. He claims that religious fundamentalists in Pakistan actively persecute the Christian minority and that no police investigation took place after the complaint he filed following the bombing of his business in 2009. The author claims that he suffers from persecution, which he defines as the sustained or systematic failure of State protection. As there has been no change in this situation since his departure, the author claims that there are no reasons to believe that he would benefit from any State protection against assaults upon his return to Pakistan. He claims that the State party is under an obligation not to deport him to Pakistan, where he risks being deprived of his freedom of religion and his life and being subjected to serious ill-treatment. The author further claims a violation of his rights under article 13 of the Covenant, as the decision regarding him cannot be appealed under the State party’s law. He claims that other individuals receiving a negative decision from the Refugee Board are not barred from appealing before the State party’s ordinary courts.

3.2The author claims that he has exhausted all available domestic remedies, as decisions by the Refugee Appeals Board cannot be appealed to Danish courts according to the Aliens Act. He also submits that this matter has not been submitted to any other international complaints mechanism.

State party’s observations on admissibility and the merits

4.1In a note verbale dated 2 October 2017, the State party submitted its observations on the admissibility and the merits of the communication. It submits firstly that, on 16 March 2016, upon the registration of the communication with the Committee and the request to refrain from returning the author to Pakistan, the Refugee Appeals Board suspended the time limit for the author’s departure from Denmark until further notice.

4.2The State party informs the Committee that, on 16 August 2016, the Refugee Appeals Board, after reviewing the case again, decided to reopen the case for an oral hearing with a new panel. On 28 November 2016, the Refugee Appeals Board refused the author’s asylum application once again, considering that the author had provided hesitant and evasive answers regarding a number of details and had avoided making specific statements about his personal circumstances by focusing on the general difficulties of Christians in Pakistan. For example, the Refugee Appeals Board considered that the author’s statements about the shooting incident of 16 March 2014 were evasive with regard to his location during the incident and the number of shots fired. The State party submits that the Refugee Appeals Board also observed several inconsistencies on matters he had communicated to the Danish Immigration Service on 21 August 2015, such as whether the church guards were armed and whether he had gone home after the shooting incident. The Refugee Appeals Board further noted that a written statement from All Saints Church affirmed that the threats to the author had been reported to the police, while the author had stated the contrary at his hearing before the Refugee Appeals Board on 28 November 2016. The Refugee Appeals Board accepted as fact the author’s statement about the attack on the church in 2013 and about his affiliation with the church. It noted that the author had had no problems during the period between the bombing of his café and the attacks of September 2013. However, based on its overall assessment, it could not accept as fact that the author had been subjected to a shooting attack on 16 March 2014, nor that he had received threats. The Refugee Appeals Board concluded – based on the background information on the generally difficult conditions for Christians in Pakistan, and the incidents of 2009 and 2013, which could not be assumed to be targeting the author specifically and personally – that it could not be considered probable that there was a real and specific risk that the author would be subjected to persecution upon his return to Pakistan. Therefore, the Refugee Appeals Board maintained its decision to reject the author’s asylum application.

4.3The State party notes that the author has not commented on the decision made by the Refugee Appeals Board on 28 November 2016 and has not provided any new specific information on his personal situation nor on his grounds for asylum. It submits that the communication should be considered inadmissible as it is manifestly unfounded. It argues that there are no substantial grounds for believing that the author would be in danger of being subjected to inhuman or degrading treatment or punishment if returned to Pakistan. The State party considers that the author has therefore failed to establish a prima facie case for the purposes of admissibility in accordance with rule 99 (previously rule 96) of the Committee’s rules of procedure.

4.4With regard to the merits of the author’s claims under articles 6 and 7 of the Covenant, the State party refers to the Committee’s jurisprudence that important weight should be given to the assessment conducted by the State party and that it is generally for the organs of States parties to examine the facts and evidence of the case and to determine whether a risk exists, unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice. The State party submits that the author has failed to establish that the assessment made by the Refugee Appeals Board was arbitrary or amounted to a manifest error or denial of justice. It argues that the author did not identify any irregularities in the decision-making process or any risk factors which the Board might have failed to properly take into account.

4.5The State party submits that the author’s communication merely reflects his disagreement with the outcome of the assessment of his specific circumstances and with the background information of the Refugee Appeals Board. It considers that he is using the Committee as an appellate body for the reassessment of the circumstances of his asylum claim. The State party emphasizes that the author’s case has already been examined by two instances in Denmark and twice by the Refugee Appeals Board. The State party submits that during the final decision made by the Refugee Appeals Board, the author had the opportunity at two different Board hearings to present his views, both in writing and orally, and with the assistance of legal counsel. It adds that the Refugee Appeals Board thoroughly examined all the information available, including the author’s communication to the Committee.

4.6The State party reiterates that, in accordance with the Committee’s jurisprudence, the Refugee Appeals Board evaluated whether the author’s statements were coherent, likely and consistent, and found that his grounds for asylum appeared non-credible. The State party also points to the inconsistencies in the author’s statements and agrees with the Refugee Appeals Board that, although it accepts as facts the incidents up to 2013, including the attack on the church, these circumstances could not justify granting the author residence.

4.7The State party also submits that the Refugee Appeals Board assessed the author’s risks of persecution in the light of the current background information on Pakistan and whether this would constitute a violation of his rights under articles 6, 7 and 13 of the Covenant. The State party submits that the Refugee Appeals Board relied upon on a report on the situation of Christians in Pakistan published by the British Home Office indicating that there are a large number of Christians in the country and that, despite some incidents of violence against them, they are not in general subject to a real risk of persecution or inhuman or degrading treatment. The same report indicates, with regard to effective protection available, that in many instances authorities are unable or unwilling to protect Christians or to bring perpetrators to account. A report from the European Asylum Support Office available to the Refugee Appeals Board noted that the attack against All Saints Church had been claimed by a militant group as revenge for drone attacks by the United States of America. The State party also refers to a report published by the United States Department of State which notes that the Constitution of Pakistan recognizes freedom of religion, and that the country’s Supreme Court ordered compensation for the families of the victims of the bombing of All Saints Church in Peshawar. The report also indicates that the Government of Pakistan announced the creation of a national council for minorities, with Christian, Hindu, Muslim and Sikh representatives.

4.8The State party notes that the Refugee Appeals Board considered the general situation of Christians in Pakistan and found that the circumstance that the author is a Christian could not independently lead to the granting to him of residence under section 7 of the Aliens Act. The State party reiterates that this decision was made on the basis of a procedure which provided the author with the opportunity to present his views and be assisted by legal counsel.

4.9Regarding the author’s claim under article 13 of the Covenant, the State party notes that this is a common claim that the author’s counsel raises in communications lodged with the Committee. It refers to the Committee’s jurisprudence according to which article 13 does not confer the right of appeal nor the right to a court hearing. The State party also points to the Committee’s Views in regard to a communication submitted by the author’s counsel where the Committee found the claims raised under article 13 to be inadmissible for lack of substantiation, having observed that the author was afforded the opportunity to submit and challenge evidence and have his asylum application examined and then reviewed by the Refugee Appeals Board.

4.10With regard to the author’s request for interim measures, the State party submits that the author has failed to sufficiently substantiate the claim that he risks suffering irreparable damage if returned to Pakistan. Accordingly, it requests the Committee to review the interim measures in the present case. The State party rejects the author’s claim that reconsideration of a case by the Refugee Appeals Board after it has been lodged with an international body can justify interim measures and means that the Board is often mistaken in its assessment. The State party submits that such cases have been reopened by the Refugee Appeals Board in the light of new essential information. It reiterates that in the present case, the author did not submit any new and essential information to the Refugee Appeals Board.

4.11The State party therefore reiterates that the communication should be declared inadmissible as it is manifestly ill-founded and that the author has not established that there are substantial grounds for believing that his return to Pakistan would constitute a violation of articles 6, 7 and 13 of the Covenant. The State party also reiterates that the author was provided with the opportunity to make submissions and that his case was thoroughly examined.

Author’s comments on the State party’s observations on admissibility and the merits

5.1On 14 May 2018, the author’s counsel submitted comments on the State party’s observations on the admissibility and the merits of the communication.

5.2The author confirms that no new information on his personal situation or on his grounds for asylum were submitted, and that he therefore believed that the reopening of his case before the Refugee Appeals Board was to correct a legal error and provide him with a positive decision. The author adds that he was only able to comment on the Refugee Appeals Board’s decision of 28 November 2016 after receiving an official translation.

5.3The author submits that he was toughly questioned by members of the Refugee Appeals Board during the hearing and was asked about 80 questions, which were all critical and doubtful of his story. The author did not feel that he was being heard in a neutral and objective manner, as the hearing was extremely tense, and he was under huge pressure. The author submits that the Refugee Appeals Board members asking the questions were the same members who had made a judgment on his case. Regarding the Refugee Appeals Board’s assessment of the credibility of the author’s story, in particular the shooting attack of 16 March 2014, the author submits that he was not aware that the incident had been reported to the police, hence the minor difference between his statement and that provided by his church in Pakistan. The Refugee Appeals Board subsequently rejected his request that the Ministry of Foreign Affairs contact the church in Pakistan in order to confirm this information.

5.4The author submits that the Refugee Appeals Board’s decision of November 2016 is even worse than its first decision and suffers from the same problems. The author argues that this decision raises new violations under the Covenant with regard to the right to a fair hearing in the context of the evaluation of deportation decisions that violate articles 6 and 7 of the Covenant. The author therefore reiterates that the communication should be declared admissible.

5.5Regarding the merits of the communication, the author notes that the Refugee Appeals Board accepted his story. However, the author disagrees with the Refugee Appeals Board’s interpretation of the asylum rules and with the standard applied in his case, according to which only certain members of the Christian minority in Pakistan who fit a particular profile can qualify for international protection. The author thus continues to argue that the Refugee Appeals Board’s decision is in violation of his rights under articles 6 and 7 of the Covenant. With regard to his claim under article 13 of the Covenant, the author agrees with the State party that there is no violation of this right in the present case.

5.6The author reiterates that the Refugee Appeals Board rejected his request to allow the Ministry of Foreign Affairs to verify his statements with his church in Pakistan. He also complains about the openly aggressive questioning that he faced, which made it unavoidable to make mistakes. The author also submits that the Refugee Appeals Board’s decision to reopen his asylum case after receiving his communication from the Committee was in violation of Danish administrative law, as it was not based on the existence of new evidence or information, nor on a legal error by the Refugee Appeals Board, but was intended to “grill” the author and make a decision based on lack of credibility of the author’s account of the facts.

5.7The author considers that his case proves that the Refugee Appeals Board renders irregular and arbitrary decisions, which in the present case are intentional. The author requests the Committee therefore to maintain the interim measures.

State party’s additional observations

6.1On 14 September 2022, the State party submitted additional observations. The State party notes that the author’s comments do not contain new essential information that gives rise to any further comments in relation to the author’s claims. It therefore maintains that the communication should be declared inadmissible as it is manifestly ill-founded and the author has failed to establish that there are substantial grounds for believing that his return to Pakistan would constitute a violation of articles 6 and 7 of the Covenant. It also maintains that the author’s claim under article 13 is manifestly unfounded and should also be declared inadmissible.

6.2The State party notes that the author has raised an additional claim regarding a violation of his right to a fair hearing and the lack of impartiality and objectivity of the Refugee Appeals Board’s decision of 28 November 2016. The State party submits that this claim has not been raised before domestic authorities and should therefore be declared inadmissible for non-exhaustion of domestic remedies. It submits that the author could have raised his claim regarding legal issues in relation to the decision of the Board before domestic courts under section 63 of the Constitution of Denmark, which empowers courts to review the legality of administrative decisions, including under the State party’s international obligations. The State party also submits that this particular claim is manifestly unfounded and should be declared inadmissible in accordance with rule 99 (b) of the Committee’s rules of procedure.

6.3The State party indicates that the author has been registered as absent from his designated place of accommodation since 27 May 2022. It also raises a concern regarding the case processing time, as this may cause prolonged uncertainty and make a final rejection more burdensome for the author and also implies long-running obligations for the State party.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee notes the State party’s argument that the author has not exhausted domestic remedies with regard to his claim under articles 6 and 7 of the Covenant on his right to a fair hearing and the lack of impartiality and objectivity of the Refugee Appeals Board’s decision of 28 November 2016 in the context of his asylum claims. It notes the State party’s argument that the legality of administrative decisions can be challenged before domestic courts under section 63 of the Constitution of Denmark, and that the author has failed to use this remedy. It further notes that the author raised this claim for the first time in his comments on the State party’s observations on the admissibility and the merits of the communication and that he has not demonstrated that he raised it during domestic proceedings. The Committee recalls its jurisprudence that, although there is no obligation to exhaust domestic remedies if they have no chance of being successful, authors of communications must exercise due diligence in the pursuit of available remedies. The Committee accordingly finds this part of the communication inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.

7.4The Committee notes the author’s claims that he would face torture or cruel, inhuman or degrading treatment or punishment, in violation of articles 6 and 7 of the Covenant, if returned to Pakistan, on the grounds of his religion as a Christian, as he claims that religious fundamentalists in Pakistan actively persecute the Christian minority. The Committee notes the author’s claim that the Refugee Appeals Board’s interpretation of asylum rules is erroneous and in violation of articles 6 and 7 of the Covenant, and that he has been persecuted on the grounds of his religion, which is one of the grounds for protection under the Convention relating to the Status of Refugees, of 1951, as well as the Covenant. The Committee observes the author’s submission that, prior to his departure from Pakistan, the church he attended was attacked, being the target of two suicide bombings and a shooting, and he received several anonymous threats via text message and a phone call telling him that he had been “lucky this time”. The Committee is mindful of the background information provided by the author on the risks faced in general by Christians in Pakistan.

7.5On the other hand, the Committee notes the State party’s challenge to the admissibility of the author’s claims under articles 6 and 7 of the Covenant on the grounds that they are manifestly unfounded. It notes the State party’s argument that the author has not substantiated his claim that the decision of the Refugee Appeals Board suffered from any procedural irregularity that would amount to a manifest error. It notes that the State party agrees with the assessment by the Refugee Appeals Board – which, while accepting some elements of the author’s statements as facts, found that the author had failed to establish that there were substantial grounds for believing that he would be at a specific and real personal risk of irreparable harm – namely of being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment – if he were returned to Pakistan.

7.6The Committee recalls paragraph 12 of its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated in articles 6 and 7 of the Covenant. The Committee also recalls its jurisprudence that the risk must be personal, and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.

7.7The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that the assessment was arbitrary or amounted to a manifest error or denial of justice.

7.8In the present case, the Committee notes that even though the Refugee Appeals Board did not contest the facts presented by the author until 2013, including on the attack against the church he attended, it noted several contradictions and inconsistencies in his story. In this regard, the Committee observes that the Refugee Appeals Board noted that the author had provided hesitant and evasive answers regarding a number of details and had avoided making specific statements on his personal circumstances. It notes, for example, that the Refugee Appeals Board considered that the author’s statements regarding the shooting incident of 16 March 2014 were evasive regarding his location during the incident and the number of shots fired, and contained inconsistencies on matters such as whether the church guards were armed and whether he had gone home after the shooting incident. The Committee also notes that the Refugee Appeals Board observed that his information contradicted that from All Saints Church as to whether the threats he had received had been reported to the police. The Committee is mindful of the Board’s reasoning that it did not afford decisive weight to isolated inconsistencies, but conducted an overall assessment of the author’s statements and other information available on file.

7.9The Committee considers that the information at its disposal indicates that the State party took into account not only the evidence provided by the author in support of his allegations, but also other available elements, such as the situation of Christians in Pakistan, when evaluating the risk faced by the author, and nevertheless, owing to certain inconsistencies in his statements, found that the author had not rendered it probable that in case of return he would face a real and personal risk of persecution that would justify asylum. The Committee considers that, while the author disagrees with the factual conclusions of the State party’s authorities, the information before the Committee does not indicate that those findings were clearly arbitrary or amounted to a manifest error or denial of justice. Consequently, without prejudice to the continuing responsibility of the State party to take into account the situation in the country to which the author would be deported, and not underestimating the concerns that may legitimately be expressed with respect to the general human rights situation in Pakistan, particularly as regards Christians, the Committee considers that, in the light of the available information regarding the author’s personal circumstances, the author’s claims regarding his real and personal risk of persecution under articles 6 and 7 of the Covenant are insufficiently substantiated and are therefore inadmissible under article 2 of the Optional Protocol.

7.10With regard to the author’s claim under article 13 of the Covenant, the Committee notes the State party’s argument that this claim should also be held inadmissible owing to insufficient substantiation. It notes the State party’s argument that article 13 does not confer a right to appeal or to a court hearing. The Committee recalls its jurisprudence in which it dismissed allegations that the Danish special asylum procedure constituted a violation of the rights protected under this article. The Committee refers to its jurisprudence according to which article 13 offers asylum-seekers some of the protection afforded under article 14 of the Covenant but not the right of appeal to judicial bodies. The Committee observes that the author was afforded an opportunity to submit and challenge evidence concerning his asylum claim. It notes that the author had his asylum application examined by the Danish Immigration Service and reviewed twice by the Refugee Appeals Board. It further notes that, in his comments on the State party’s observations, he decided not to further pursue his claims under article 13 and agreed with the State party that no violation of that right had taken place. The Committee therefore concludes that the author has failed to sufficiently substantiate his claims under article 13 of the Covenant for the purposes of admissibility and declares this part of the communication inadmissible under article 2 of the Optional Protocol.

8.The Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That the present decision shall be transmitted to the State party and to the author.