CAT/C/48/D/364/2008
suffered ill-treatment at the hands of students, neighbours and Congolese State agents and
was eventually arrested because of his origins. The authorities were reportedly unable to
protect him.
2.2
The complainant arrived in Switzerland and applied for asylum on 2 July 2003.
During the review of his asylum application by the Swiss authorities, the complainant
claimed that, as a law student at the University of Kinshasa, he had been arrested by State
agents because of his Rwandan origin on or around 10 November 1998 and had been taken
to the home of Laurent-Désiré Kabila, from which he had escaped with the help of a guard
after spending one week in captivity. The complainant claims that he then fled to Bunia
(Ituri). On 1 May 2003, the complainant was allegedly abducted and mistreated by Lendu
militiamen who mistook him for a Hema because of his appearance. They allegedly
attempted to make him disclose the names of people who were planning to attack them.
During his transfer on 5 May 2003, the complainant allegedly managed to escape with the
help of one of the militiamen, who had recognized him. He fled to Uganda by pirogue on 7
May 2003. He then continued on to Kenya and thence to Rome by plane on 29 June 2003.
He then made his way to Switzerland, arriving on 2 July 2003, and applied for asylum the
same day.
2.3
On 2 February 2005, the Federal Office for Migration rejected the complainant’s
asylum application. It established, through investigations conducted by the Swiss embassy
in the Democratic Republic of the Congo, that the complainant’s father was Rwandan, but
of Hutu ethnicity, not Tutsi, as the complainant claims. What is more, the complainant
could not speak Tutsi, knew nothing about Tutsi traditions and could not name his father’s
place of origin. In the complaint before the Committee, the complainant claims to be of
Tutsi ethnicity, which contradicts the findings of the Swiss authorities. Furthermore, based
on the investigations conducted by the Swiss mission in Kinshasa, the Federal Office for
Migration has established that the complainant apparently did not live in Bunia from 1998
to 2003. The complainant has maintained this claim and requested permission to call on
individuals from Bunia to testify on his behalf. The Federal Office for Migration denied this
request. It did confirm, however, that the complainant had been the victim of harassment in
1998, but established that the harassment was not sufficiently intense to prevent him from
remaining in Kinshasa until 2003.
2.4
On 11 July 2005, the Swiss Asylum Appeals Commission, later replaced by the
Federal Administrative Tribunal, rejected the complainant’s appeal and ordered his
deportation from Switzerland on 8 September 2005. The Commission maintained that it had
not been established that the complainant was actually of Tutsi origin and that his claims
regarding his two escapes from detention in Kinshasa and Bunia were not plausible. The
Commission did acknowledge, however, that the complainant had experienced difficulties
in Kinshasa in 1998, but found that there were no grounds for believing that the
complainant would be exposed to any real, specific or substantial risk of torture, as defined
under article 3 of the Convention if he were to be returned to the Democratic Republic of
the Congo.
2.5
On 22 August 2005, the complainant’s two children applied for asylum. The Federal
Office for Migration denied their application on 20 December 2007. On 24 September
2008, the Federal Administrative Tribunal rejected their appeal and ordered their
deportation from Switzerland by 3 November 2008. The children had allegedly left the
Democratic Republic of the Congo after being threatened and persecuted because of their
Rwandan origin. In August 2005, an unknown “white female” allegedly informed their
father that the children had arrived in Switzerland. The Federal Administrative Tribunal
decided that the children’s statements were not plausible and that their claim to Tutsi origin
could not be accepted, given that their father’s own origin was in dispute. The Federal
Administrative Tribunal also affirmed that the psychological problems referred to in the
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