CCPR/C/119/D/2593/2015
sexually abused in 2010. Regarding her travels, the author stated that she had travelled to
Thailand more than twenty times and to Singapore about fifteen times.
4.3
The State party argues that the author has failed to provide sufficient grounds for
believing that her return to Malaysia would violate article 7 of the Covenant.
4.4
With regard to the author’s claims under articles 17, 18 and 26 of the Covenant, the
State party notes that the author is seeking to apply State obligations under these articles in
an extraterritorial manner. Her allegations of violations under these provisions are not based
on treatment that the author has suffered in Denmark or a territory under its effective
control and therefore the State party cannot be held responsible for these alleged
violations.8 The Committee has never considered a complaint on its merits regarding the
removal of a person who feared violation of provisions other than articles 6 and 7 of the
Covenant in the receiving State. Therefore, these claims should be declared inadmissible
ratione materiae and ratione loci.
4.5
On the merits, the State party argues that the author’s removal to Malaysia would
not expose her to a real risk of being subjected to treatment covered by article 7 of the
Covenant. To grant a residence permit under section 7 (1) of the Aliens Act of Denmark,
the Board requires the existence of a well-founded fear of being subjected to specific,
individual persecution of a certain severity if returned to the country of origin, which
should be supported by objective facts. When assessing whether this fear is well founded,
the Board takes into account, inter alia, the information on persecution available prior to the
asylum seeker’s departure from their country of origin.
4.6
In her communication to the Committee, the author has failed to provide any new
specific information on her situation other than what was already provided and assessed by
the Board on 19 December 2014, and 10 March and 30 March 2015. In those decisions, the
Board considered the grounds for asylum and the supporting documents and background
information provided by the author, including the sharia court documents. The Board
conceded that the author had had gender reassignment surgery and that she had been
detained for brief periods of time, including in April 2012. However, the Board could not
consider it a fact that the author had been sexually abused. Her statements concerning the
rapes raised a significant amount of uncertainty concerning the circumstances, number of
perpetrators and incidents and the towns or cities where these had occurred. On the whole,
the Board did not find it probable that the author had been the victim of this kind of assault.
With regard to the alleged threat made by the Department of Islamic Affairs to institute
legal proceedings against the author in April 2012, the Board emphasized that no steps had
been taken to follow up on that threat since April 2012, and that the author had travelled in
and out of the country on numerous occasions since that date and until her departure in
January 2014. The Board also noted that most of the incidents referred to by the author had
taken place several years earlier and that the author, to a great extent, was able to live a
tolerable life in her country of origin, including with her family in Serambam, where her
mother was a great support. The Board had concluded that the author had failed to render it
probable that she would face a risk of persecution in case of return.
4.7
The State party notes that the Board did not presume that the author would have to
conceal her gender or religious identity on her return to avoid abuse. The author had
informed local police about her gender and religious identity, despite which she was able to
live a normal life without being subjected to abuse. In its assessment, the Board took into
account the author’s particular vulnerability.
Author’s comments on the State party’s observations on admissibility and the merits
5.1
On 5 February 2015, the author submitted that she had sufficiently shown that
substantial grounds existed for believing that her return to Malaysia would violate article 7
of the Covenant.
8
4
The State party cites the jurisprudence of the European Court of Human Rights in the following cases:
Soering v. the United Kingdom, 7 July 1989, Series A no. 161, para. 88; F. v. the United Kingdom
(dec.), no. 17341/03, decision of 22 June 2004; and Z. and T. v. the United Kingdom (dec.), no.
27034/05, ECHR 2006-III.