CAT/C/44/D/322/2007
1.2
In accordance with article 22, paragraph 3, of the Convention, the Committee
brought the complaint to the State party's attention on 14 June 2007. At the same time, the
Committee, pursuant to rule 108, paragraph 1, of its rules of procedure, requested the State
party not to deport the complainants to the DRC while their complaint is being considered.
On the same day, the State party acceded to the request.
The facts as presented by the complainants
2.1
The complainants are from Gemena in the province of Equateur. In 2004, they
moved to Goma where Ms. Njamba’s husband had started a small business. At that time,
her husband’s brother was a commander in the Congolese military. In Goma, Ms. Njamba
discovered that the small business served as a cover for her husband’s real activities which
involved providing support for the rebels in the Equateur province and Goma. Her husband
had been implicated in acts of treason and espionage on behalf of rebels since 1998,
including purchasing of arms for rebels in Equateur. For this reason, many families wanted
her husband dead and had threatened him. Ms. Njamba knew about her husband’s and her
brother-in-law’s activities and was thus considered by many to have been their accomplice
and involved herself in pro-rebel activities. The police would not protect her. On the
contrary, they had helped expose her husband’s activities to the families seeking revenge
against him.
2.2
In December 2004, while the complainants were in church, fighting broke out. When
they returned home after hiding for a few days in other people’s homes, Ms. Njamba’s
husband and three of her children had disappeared. Ms. Njamba suspects that they were
killed by Congolese militia. She believes that she and her daughter survived only because
they were hiding in a different place. During the fighting, the complainants witnessed
executions, rapes and other acts of torture. Ms. Njamba’s brother-in-law was killed for
suspected treason.
2.3
Following this incident, the complainants fled the DRC and arrived in Sweden on 29
March 2005. They applied for asylum on the same day. On 21 March 2006, their
application was rejected by the Migration Board which concluded that the circumstances
referred to by the complainants were not sufficient to entitle them to refugee status. The
Board considered that there was no personal threat to the complainants’ lives. Moreover, it
considered that the complainants were from the province of Equateur where they could
return. The complainants appealed against this decision submitting that Ms Njamba was
HIV positive and that no medical treatment was available in the DRC.
2.4
On 1 September 2006, the complainants’ appeal was rejected by the Migration
Court. It shared the conclusions of the Migration Board that the circumstances invoked by
the complainants were not sufficient to show that they were in need of protection. With
regard to Ms Njamba’s health condition, the Court stated that it was not considered to be of
such a character as to amount to the exceptionally distressing circumstances that are
required to apply Chapter 5, Section 6, of the 2005 Aliens Act. On 10 October 2006, the
complainants lodged a further appeal before the Migration Court of Appeal, but leave to
appeal was denied on 8 January 2007.
2.5
In a request to the Migration Board on 21 March 2007, the complainants called for a
new examination of their application under Chapter 12, Section 19, of the 2005 Aliens Act.
They added to their request that they would be in danger if they were to be sent back to the
DRC because people who were returned from Europe were automatically arrested and
interrogated upon arrival. On 30 May 2007, the Migration Board decided not to stay the
execution of the expulsion order. On 7 June 2007, it also decided not to re-examine the
complainants’ application.
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