CAT/C/31/D/209/2002
Page 5
4.3
The Refugee Board rejected the appeal on 21 August 2001. It found that the
complainant had not presented his grounds for seeking asylum in a coherent and credible
way. He was found to have provided conflicting and fabricated accounts of his departure
from Algeria and his treatment by the Algerian authorities, including details relating to his
imprisonment, whether or not he had been convicted of any offence, and his military
service. This, together with the Amnesty International report, caused the Review Board to
dismiss the appeal. There was no evidence before the Board from which it could have been
established that the complainant was at risk of persecution if returned to Algeria.
4.4
The State party provides a description of the composition, competence and
processes of the Review Board. Decisions of this body are final and not subject to judicial
review. This follows from a decision of the Danish Supreme Court in 1997, which noted
that the Review Board was an expert body of quasi-judicial character. It reaches its
decisions on the basis of an individual assessment of the asylum seeker, considered in light
of the general situation in the country of origin. To obtain asylum, an applicant must have a
well founded fear of persecution, in accordance with the Refugee Convention of 1951, and
this must be supported by objective evidence. The Board attaches importance to whether
the applicant can provide a credible account of his or her situation. It also studies reports
which deal with the human rights situation in relevant countries. Background information is
collated from various sources, including governmental, non-governmental and United
Nations sources. Further, the Board considers the fact that a person may have been tortured
in the past as a relevant but not necessarily decisive consideration in deciding whether to
grant asylum.
4.5
The State party submits that the complainant is seeking to have the Committee
conduct a review of the relevant evidence supporting his claim for asylum, whereas it is
well established that the Committee is not an appellate, quasi-judicial or administrative
body. The Review Board has had the benefit of direct contact with the complainant, and of
reviewing all of the relevant evidence in detail. It has not found the complainant’s evidence
to be credible, and finds no objective basis to fear that he will be subjected to torture if
returned to Algeria. The State party refers to the Committee’s jurisprudence on article 3,
which acknowledges that considerable weight should be given to the findings of fact made
by government authorities.
4.6
The State party argues that, in relation to a claim under article 3 of the
Convention, the burden of proof is on the applicant to present an arguable case. It refers to
the Committee’s General Comment 1, which states that for the purposes of assessing
whether there are ‘substantial grounds for believing that a person would be in danger of
being subjected to torture,’ the risk of torture must be ‘assessed on grounds that go beyond
mere theory or supposition’, although it does not have to meet the test of being ‘highly
probable’. The applicant must establish that he would be in danger of being tortured, and
that the danger is ‘personal and present’.
4.7
The State party contends that the above is not born out in the present case. It notes
that, according to the Committee’s General Comment No 1 and its case law, it is
appropriate to take into account the complainant’s credibility and any discrepancies in
his/her evidence. The State Party addresses in some detail the various discrepancies in the
complainant’s accounts of his experiences. For example, the complainant first stated that he
flew to Moscow, then Berlin, and paid some friends to hide him in a freight lorry to
Denmark. He later said that, after flying to Russia, he took a ferry first to Germany, and