Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2671/2015 * , **

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

Alleged victim:The author

State party:Denmark

Date of communication:5 November 2015 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 6 November 2015(not issued in document form)

Date of adoption of decision :6 November 2020

Subject matter:Deportation to Afghanistan

Procedural issue :Insufficient substantiation of claims

Substantive issues:Risk of torture or other cruel, inhuman or degrading treatment or punishment; non-refoulement

Articles of the Covenant :6, 7 and 13

Article of the Optional Protocol:2

1.1The author of the communication is F.A., a national of Afghanistan born on 21 December 1986. At the time of submission of the communication, he was subject to deportation to Afghanistan following rejection of his application for refugee status by the Danish authorities. He claimed that by forcibly returning him to Afghanistan, Denmark would violate his rights under articles 6 and 7 of the Covenant. He further claimed that his rights under article 13 of the Covenant had been violated in connection with the hearing of his asylum case by the Danish authorities. The author requested the Committee to request interim measures so that he would not be returned to Afghanistan pending the examination of his communication. The Optional Protocol entered into force for the State party on 23 March 1976. The author is represented by counsel.

1.2On 6 November 2015, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party to take interim measures. On 10 November 2015, the State party suspended execution of the deportation order against the author.

Facts as submitted by the author

2.1The author, who is of Tajik ethnicity and a Muslim, had been working since 2012 for the Ministry of Labour, Social Affairs, Martyrs and Disability in Afghanistan. He was the head of the office located in Pul-e Alam, in Logar Province. He was responsible for recording and estimating damage in the areas attacked by the Taliban and for distributing humanitarian aid. He would visit affected areas approximately twice a week, usually accompanied by two co-workers, a driver and 10–12 police officers. In April 2014, the author received a telephone call from the Taliban telling him to stop working for the Government and that unless he surrendered to the Taliban he would be killed. The following morning, he told his supervisor about the call, who reported the incident to the governor. The governor contacted the police and the security forces, which showed up at the author’s workplace three days later. They questioned the author and offered him protection at his workplace only. Two days later, the author received another threatening call and, later on, several similar life-threatening calls. He reported all the calls to his supervisor, who transmitted the messages to the police. They confirmed that they could protect him at his workplace only. The author also received two threatening letters, one of which was delivered by hand by an elderly man to the author’s father at the mosque on 15 May 2014. Approximately 20 days later, the author received another letter. The content of the letters was similar to that of the telephone calls. A copy of the letters was given to the police, but they continued to refuse to provide protection to the author outside of his workplace. As he feared for his life, the author left his work 13 days after he had received the second written threat and decided to flee Afghanistan.According to the information gathered by the author, the threatening letters appear to have been written by the Hizb-i Islami, which collaborated with the Taliban in Logar Province. According to the information provided by the author, approximately 80 per cent of Logar Province was controlled by the Taliban at the time of his submission to the Committee.

2.2The author entered Denmark on 25 August 2014 without valid travel documents and applied for asylum on the same day. His sister is resident in Denmark.

2.3On 1 July 2015, the Danish Immigration Service refused the author’s asylum request. On 21 September 2015, the Refugee Appeals Board upheld that decision. While considering it a fact that the author had been employed as a public official with the Ministry of Labour, Social Affairs, Martyrs and Disability in Logar Province, the Board expressed doubt, owing to minor inconsistencies in his statements, that he had indeed found himself in conflict with the Taliban as a result of his work for the Afghan Government.

2.4In a letter dated 8 October 2015, the author submitted a request to the Refugee Appeals Board to reopen his case, arguing that the interpretation provided throughout the asylum proceedings had been unsatisfactory. He noted that even though he had raised that problem several times before the authorities, his concerns had not been recorded in the minutes of the hearings. On 8 February 2016, the Board declined the author’s request to reopen his asylum case.

2.5The author claims to have exhausted all domestic remedies.

Complaint

3.1The author claims that there are substantial grounds for believing that if he were returned to Afghanistan, he would be in danger of being deprived of his life or subjected to torture or cruel, inhuman or degrading treatment or punishment as a result of having worked for the Afghan Government. He alleges that the risk assessment carried out by the domestic authorities had been erroneous, primarily because in the consideration of his appeal, the Refugee Appeals Board failed to apply the guidelines of the Office of the United Nations High Commissioner for Refugees (UNHCR) on credibility assessment.In support of his claims, he also refers to the general situation of forced returnees in Afghanistan.

3.2Furthermore, the author claims a violation of his rights under article 13 of the Covenant.

State party’s observations on admissibility and the merits

4.1In a note verbale dated 6 May 2016, the State party submitted its observations on admissibility and the merits. It challenges the admissibility and the merits of the communication and notes that it is for the author to establish a prima faciecase for the purposes of admissibility. The State party argues that the author’s claims under articles 6, 7 and 13 are manifestly ill-founded and should therefore be declared inadmissible for lack of sufficient substantiation. Should the Committee declare the communication admissible, the State party is of the view that articles 6 and 7 of the Covenant would not be violated if the author were returned to Afghanistan. It further submits that article 13 of the Covenant had not have been violated in connection with the hearing of the author’s asylum case by the Danish authorities.

4.2The State party describes the structure, composition and functioning of the Refugee Appeals Board,and the legislation that applies to asylum proceedings.

4.3Regarding the alleged violation of articles 6 and 7 of the Covenant, the State party submits that the Refugee Appeals Board did not question the author’s statements that he had worked for the Ministry of Labour, Social Affairs, Martyrs and Disability and that he belonged to a group of persons who may in general, owing to their work, be at risk of abuse by the Taliban or other groups fighting against the Afghan authorities. At the same time, the Board considered that those circumstances did not independently justify the granting of a residence permit without substantiation of the claim that he would be at a specific and individual risk of persecution upon his deportation to Afghanistan. In this context, the State party notes that the domestic authorities could not accept as a fact that the author had come into conflict with the Taliban, because the author’s narrative was found to lack credibility. In its assessment, the Board took the view that the author’s statements about whether he had been in touch with the police and whether the police had been willing to protect him seemed incoherent and inconsistent. Furthermore, he had provided conflicting statements as to whether he had continued to work outside of his office after having received the first threatening call. The Board also considered it peculiar that, having received the second written threat, the author had stayed at home for 14 more days before leaving Afghanistan. In addition, he gave vague and evasive answers to essential questions, including as to whether it had been the same person who had made the telephone calls, in spite of the fact that the calls had lasted for approximately 10–15 minutes with no disruption to or problems with connection. The State party notes in this respect that the author is a young man with a university degree and that the alleged threats were made over a relatively short period of time (from April to June 2015), which makes it unlikely that the author should have difficulty appropriately remembering the events. Nevertheless, the author failed to provide any reasonable explanation for these inconsistencies, apart from arguing that there had been some problems with interpretation, which, however, was not accepted by the authorities as he had raised these concerns only at a late stage in the proceedings.

4.4In addition, the State party submits that the domestic authorities could not accept any of the written threats submitted by the author as evidence because they were found to have been fabricated for the occasion. In this respect, the State party notes that the Refugee Appeals Board takes into account a number of factors in determining whether it is necessary to verify the authenticity of documents. These factors include the nature and content of the documents, whether the verification of the documents could lead to a different assessment of evidence, the circumstances of the issuance of the documents, general background information in respect of the particular country and the overall credibility of the asylum seeker. Having considered all these factors, the Board eventually concluded that the circumstances of the present case did not necessitate further verification of the submitted documents.

4.5The State party further notes that the author has not produced any new information in his complaint to the Committee and that all relevant background information was made available to and considered by the Refugee Appeals Board in its decision of 21 September 2015. After a thorough assessment of the relevant background informationand the author’s individual circumstances, the Board concluded that the author was not at risk of persecution contrary to articles 6 and 7 of the Covenant. In any event, the State party submits that the author’s reference to the general situation of forced returnees in Afghanistan could not lead to a different assessment of his case.

4.6As regards the alleged violation of article 13 of the Covenant, the State party submits that that article partly guarantees the same procedural rights afforded by article 14 (1) of the Covenant, but that it does not, however, encompass the right to appeal or the right to a court hearing.Considering that the author did not elaborate any further on his claim under article 13, the State party is of the view that this claim has not been sufficiently substantiated. Insofar as the author refers to problems of interpretation, the State party notes that, in its decision of 8 February 2016, the Refugee Appeals Board duly considered the issue. The Board established that the interviews conducted by the Danish Immigration Service on 12 February 2015 and 29 June 2015 had been conducted in Dari in the presence of a certified interpreter. The author did not comment on the minutes of these interviews, except to request a small correction to his mother’s name. He then stated that he had understood everything and that there had been no problems with the interpretation. The Board therefore observed that the author was unable to provide a reasonable explanation as to why he had not raised his concerns about interpretation any earlier in the proceedings despite having had the opportunity to do so. As concerns the hearing before the Board, the State party submits that there appears not to have been any problems with the interpretation. In the circumstances, the State party is of the view that there has been no violation of article 13 of the Covenant on account of alleged errors of interpretation.

4.7Lastly, the State party submits that the author disagrees with the assessment of his specific circumstances and the background information considered by the Refugee Appeals Board. However, in his communication to the Committee, the author failed to identify any irregularity in the decision-making process or any risk factor that the Board has failed to take properly into account. The State party also submits that the Committee must give considerable weight to the findings of fact made by the Board, which is better placed to assess the factual circumstances of a particular case. Hence, in the State party’s view, there is no basis for doubting, let alone setting aside, the assessment made by the Board according to which the author has failed to establish that there are substantial grounds for believing that he would be in danger of being deprived of his life or subjected to torture or cruel, inhuman or degrading treatment or punishment if returned to Afghanistan.

4.8The State party informs the Committee that, following the Committee’s request for interim measures, the Refugee Appeals Board suspended the time limit for the author’s departure from Denmark until further notice. On the basis of the above, the State party requests the Committee to review its request for interim measures.

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

5.1On 10 August 2016, the author submitted his comments on the State party’s observations.

5.2With regard to his claims under articles 6 and 7 of the Covenant, the author reiterates his previous arguments and underlines that the domestic authorities have failed to explain why they consider that he, as a former employee of the Afghan Government, would not face the risk of persecution if he were deported to Afghanistan, especially in the light of the fact that he is from an area that is, to a large extent, still controlled by the Taliban.

5.3Regarding his claim under article 13 of the Covenant, the author submits that during the first two interviews conducted by the Danish Immigration Service, the Iranian interpreter was speaking Farsi and not Dari. He raised this problem during the second interview, but the interpreter did not translate his concern and the interview continued in Farsi. As concerns the interview before the Refugee Appeals Board, he notes that the interpreter was from Afghanistan but he was speaking Pashto and not Dari. It was not until he received the decision of the Board that he understood the nature of the credibility assessment. As there was no possibility for him to appeal this decision to the Danish courts, he requested the reopening of the proceedings. The decision of the Board of 8 February 2016 proves that the domestic authorities failed to recognize his concerns in connection with the interpretation, which has clearly violated his rights under article 13 of the Covenant. The author further submits that at the hearing before the Board, it was not only the representative of the Danish Immigration Service but also the members of the Board who kept asking him questions, which created the impression that the members were not impartial.

5.4In the light of these arguments, the author requests the Committee to uphold its request for interim measures.

State party’s additional observations

6.1On 9 August 2017, the State party submitted its additional observations on admissibility and the merits, reiterating that the author’s claims had not been substantiated.

6.2The State party upholds its observations of 6 May 2016 and recalls the Committee’s jurisprudence that considerable weight should be given to the assessment conducted by the State party, and that it is generally for the organs of the States parties to the Covenant to review or evaluate facts and evidence in order to determine whether there is a real risk of irreparable harm to a person if removed from their territory, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice.The State party adds that the author has not explained his view that the decision by the Refugee Appeals Board is contrary to this standard.

6.3The State party notes that although the UNHCR background material cited by the author indeed refer to persons who have collaborated with international forces as individuals belonging to a potential risk group, this reference cannot independently justify the granting of residence to the author under section 7 of the Aliens Act, nor can other general background information on the security situation in Afghanistan. The State party continues to argue that the decisive factor is whether, as determined through an assessment of the information in the case at hand in conjunction with the current background information on Afghanistan, the author would be at a specific and individual risk of persecution if returned to Afghanistan.

6.4Regarding the author’s claim that he was asked questions by members of the Refugee Appeals Board, the State party notes that it is standard procedure for Board members to ask the asylum seekerquestions during the oral hearing, especially if the asylum seeker’s statements require further clarification on points that were not addressed by the representatives of the parties.

6.5Accordingly, the State party maintains that the complaint should be declared inadmissible. Should the Committee examine the complaint on the merits, the State party is of the view that there has been no violation of the author’s rights under article 13 of the Covenant, and that it has not been established that there are substantial grounds for believing that returning the author to Afghanistan would constitute a violation of his rights under articles 6 and 7 of the Covenant.

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 author’s claim that he has exhausted all domestic remedies available to him. In the absence of any objection by the State party in that connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

7.4The Committee notes the author’s claim under article 13 of the Covenant that he was unable to appeal the negative decision of the Refugee Appeals Board to a judicial body and that he felt that the Board was biased because the members themselves posed questions to him at the oral hearing. In that regard, 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 also notes that the author has not explained why he considers that the mere fact that members of the Board asked him questions in connection with his case at the oral hearing should give the impression that they lacked impartiality. The Committee further notes the author’s claims regarding the alleged errors of interpretation during the asylum hearings, which may have affected due process guarantees in the proceedings. However, the Committee notes the State party’s assertions in this regard that the interviews conducted by the Danish Immigration Service on 12 February 2015 and 29 June 2015 were conducted in Dari in the presence of a certified interpreter, that the author did not comment on the minutes of the interviews, except to request a small correction to his mother’s name, and that the author stated that he had understood everything and that there had been no problems with the interpretation. The author was therefore unable to provide a reasonable explanation as to why he had not raised his concerns about interpretation any earlier in the proceedings despite having had the opportunity to do so. As concerns the hearing before the Board, the State party has submitted that there appears not to have been any problems with the interpretation. The Committee therefore concludes, on the basis of the information before it, that the author has failed to sufficiently substantiate his claims under article 13 of the Covenant, and declares this part of the communication inadmissible under article 2 of the Optional Protocol.

7.5The 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 his country of origin, owing to his former position at the Ministry of Labour, Social Affairs, Martyrs and Disability in Afghanistan. The Committee observes the author’s submission that prior to his departure from Afghanistan, he had received several telephone calls and two threatening letters from the Taliban telling him that unless he stopped working for the Government he would be killed. The Committee is mindful of the background information provided by the author on the potential risk profile of former government officials and civil servants. The Committee also notes the author’s claim that he was not provided adequate interpretation during the asylum hearings, which had a negative impact on his credibility assessment.

7.6On the other hand, the Committee notes that the State party has challenged the admissibility and substance of these claims, and 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 Afghanistan.

7.7The 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 has also indicated that the risk must be personal and that there is a high threshold for providing substantial grounds for establishing 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.

7.8The 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.

7.9In the present case, the Committee notes that the Refugee Appeals Board pointed to several contradictions in the author’s accounts of the facts and that, even though the Board did not contest the fact that the author had worked for the Afghan Government, it considered that he was unable to establish that his work had led to a perpetual conflict with the Taliban, which was allegedly manifested in several verbal and written threats addressed to the author. 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. In this respect, the Committee notes the alleged errors of interpretation during the asylum hearings, but also notes that the author failed to explain how and to what extent the allegedly erroneous interpretation had distorted his statements, which were ultimately deemed inconsistent by the domestic authorities and which led the authorities to conclude there were no substantial grounds for believing that returning the author to Afghanistan would constitute a violation of his rights under articles 6 and 7 of the Covenant. Furthermore, the Committee notes the State party’s arguments that the author failed to provide any plausible explanation as to why he had not raised the issue any earlier in the proceedings, especially on occasions when he had been requested to confirm that he had properly understood the interpreter. 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.

7.10The Committee considers that the author has not established a sufficient basis for his claim that the evaluation of his asylum application by the Danish authorities was 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 Afghanistan,the Committee considers that, in the light of the available information regarding the author’s personal circumstances, the author’s claims under articles 6 and 7 of the Covenant are insufficiently substantiated and are therefore 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.