CAT/C/71/D/874/2018
to Christianity, taking into consideration the present situation of Christian minorities in
Afghanistan. In support of his claims, he refers to country reports stating that religious
minorities face discrimination and sometimes persecution in Afghanistan. He refers to reports
by the Home Office of the United Kingdom of Great Britain and Northern Ireland, in which
it is stated that: “Given the Afghan State’s position on apostasy, Christian converts will not
be able to access sufficient protection anywhere in Afghanistan and internal relocation should
not be relied upon. Christian converts should therefore be granted asylum unless,
exceptionally, there is clear evidence why a particular individual would not be at risk.” 3 The
complainant notes that he has converted, that he is an active publisher and that those facts are
already public knowledge in the community where he lives. He preaches from door to door,
including to fellow Afghans, which poses a risk to his safety, and the news about his
conversion may already have reached Afghanistan.
3.2
The complainant notes that, as a Jehovah’s Witness, preaching or proselytizing is at
the core of his Christian faith. He claims that, even if he were to exercise discretion when
preaching, such an essential part of his faith would inevitably lead to his public identification
as a Christian and increase his risk of facing persecution or ill-treatment. He notes that,
according to a report by the Office of the United Nations High Commissioner for Refugees
(UNHCR), public opinion is hostile towards individuals or organizations that proselytize.4
He also notes that, according to UNHCR, persons accused of proselytizing have reportedly
been arrested and detained.
3.3
The complainant submits that the State party has failed to consider his claims
concerning proselytizing in substance. He claims that, in his application for asylum, he
mentioned that he was going to church. The State considered that information to be
insufficient. His public counsel did not investigate further as to what extent the complainant
had converted. The outcome of the proceedings would have been different if the extent of his
involvement with the congregation had been made clear at an early stage.
State party’s observations on admissibility and the merits
4.1
By note verbale of 26 April 2019, the State party submitted its observations on the
admissibility and the merits of the communication. It submits that the communication should
be declared inadmissible for failure to substantiate the claims, pursuant to article 22 (2) of
the Convention and rule 113 (b) of the Committee’s rules of procedure, because the
complainant’s assertion that he is at risk of being treated in a manner that would amount to a
breach of article 3 of the Convention if returned to Afghanistan fails to rise to the minimum
level of substantiation required for the purpose of admissibility. 5
4.2
On the basis of the jurisprudence of the Committee, the State party argues that, to
determine whether the forced return of the complainant to Afghanistan would constitute a
breach of article 3 of the Convention, the relevant considerations are the general human rights
situation in Afghanistan and the personal, foreseeable and real risk of the complainant being
subjected to torture, following his return there; the existence of a consistent pattern of gross,
flagrant or mass violations of human rights in a country does not as such constitute sufficient
grounds for determining that a particular person would be at risk of being subjected to torture
upon his or her return to that country.6
4.3
The State party submits that the burden of proof in cases such as the present one rests
with the complainant, who must present an arguable case establishing that he runs a
foreseeable, present, personal and real risk of being subjected to torture. In addition, the risk
of torture must be assessed on grounds that go beyond mere theory or suspicion. Although
3
4
5
6
United Kingdom, Home Office, “Operational guidance note: Afghanistan”, June 2013.
Office of the United Nations High Commissioner for Refugees, “Eligibility guidelines for assessing
the international protection needs of asylum seekers from Afghanistan”, 17 December 2010.
H.I.A. v. Sweden, (CAT/C/30/D/216/2002), para. 6.2.
E.J.V.M. v. Sweden, (CAT/C/31/D/213/2002), para. 8.3; and, for a more recent reference, A.B. v.
Sweden, (CAT/C/54/D/539/2013), para. 7.3.
3