CAT/C/63/D/719/2015
consideration of whether a medical report should have been submitted in the first asylum
application and that they are, therefore, an effective remedy.
4.3
The State party disputes the complainants’ statement that an appeal would not be an
effective remedy as it has no automatic, suspensive effect and allows the Government of the
Netherlands to initiate the complainants’ expulsion. The State party maintains that the
complainants had the opportunity to apply to the Division for an injunction to prevent their
expulsion pending appeal. Pursuant to sections 8:81 and 8:83 (4) of the General
Administrative Law Act, a judge responsible for provisional measures in appeal
proceedings must assess the risk of a violation of article 3 of the Convention upon the
asylum seeker’s return to his or her country of origin and must deliver his or her judgment
before expulsion. Therefore, the complainants’ conclusion that the higher appeal did not
have to be exhausted is not warranted.
Complainant’s comments on the State party’s observations
5.1
On 26 February 2016, the complainants submitted their comments on the State
party’s observations. The complainants maintain that their application for asylum is
plausible given article 3 of the Convention, arguing that the Committee’s jurisprudence
requires a flexible approach to plausibility standards in order for the article to be applied
effectively.12
5.2
The complainants contest the State party’s argument that domestic remedies provide
an opportunity for suspension of their expulsion. They state that neither the lodging of an
appeal, nor of an injunction pending the appeal, have automatic suspensive effect. They
refer to the European Court of Human Right’s decision that the possibility of requesting a
suspension of an impugned measure through an urgent procedure is not a sufficient remedy
unless it allows for the rigorous scrutiny of the merits of the claim. 13 Rather, this remedy
allows for possible expulsion without complete scrutiny of the claim, violating article 3 of
the Convention.
5.3
The complainants also refute the State party’s argument that the scope of a higher
appeal to the Administrative Jurisdiction Division would not be limited to the procedural
question of whether a medical report submitted after the initial asylum application can be
substantively considered as a new fact. They refer to two expert opinions stating that the
Division requires a “legally justified reason” for the late submission of a medical report.
Without the “legally justified reason,” the appeal would be strictly limited to the question of
whether new facts have been presented, with no substantive assessment of the merits of the
case. As to the three decisions referred to by the State party, they point out that, in its
decisions of 14 January 2011 and 28 June 2012, the Division ruled that the applicant had
failed to provide a legally justified reason why he did not initially request a medical report.
Thus, these cases support their allegations that a further appeal would be limited to the
question of whether the medical report constituted a new fact. Furthermore, the decision of
28 December 2015 held that the medical report was insufficiently taken into account in
reviewing the article 3 violation in the light of new facts presented by the complainant
regarding a deteriorating situation. By itself, the medical report did not constitute a new fact
that allowed for substantive investigation. The complainants conclude that the State party’s
provision of only three cases out of Division case law stretching back over more than 15
years, none of which demonstrate that the appeal will focus on more than the validity of the
Netherlands Institute for Human Rights and Medical Research report as a new fact, suggest
that a further appeal has virtually no prospect of success in determining the merits of their
application.
State party’s observations on the merits
6.1
In its submission dated 9 June 2016, the State party provided information on the
merits of the case. After briefly restating the facts of the case, the State party elaborated on
12
13
4
See, e.g., Mutombo v. Switzerland (CAT/C/12/D/13/1993), para. 9.2.
See European Court of Human Rights, M.S.S. v. Belgium and Greece (application no. 30696/09),
judgment of 21 January 2011, paras. 387–390.