CCPR/C/130/D/3246/2018
Afghanistan is pervasive. Homosexuality is considered un-Islamic and the author runs the
risk of being killed by non-State actors because of his sexual orientation and gender identity.
There is no State protection, as the Afghan police reportedly arrest and imprison people based
on their real or perceived sexual orientation. 4 Considering the grave punishment and illtreatment he would face in Afghanistan because he is gender non-conforming and gay and
because of his mental health, the merits of his complaint should be examined. Furthermore,
as his claim is not unfounded and very personal, such an examination should include an
interview.
State party’s observations on admissibility and the merits
4.1
On 2 July 2019, the State party submitted its observations on admissibility and the
merits. It does not contest that the author has exhausted the available domestic remedies.
However, it submits that the communication is manifestly ill-founded.
4.2
On the merits, the State party acknowledges that legitimate concerns may be raised
about the general human rights situation in Afghanistan, but observes that the general
situation alone does not establish that the author’s removal would be contrary to article 7 of
the Covenant.
4.3
Additionally, according to the State party, the author has not shown that he would
personally face a real risk of being subjected to treatment in breach of article 7 of the
Covenant upon return to Afghanistan. In this regard, the State party submits, first, that its
authorities explicitly applied domestic legislation reflecting the same principles as those in
articles 6 (1) and 7 of the Covenant, in addition to considering other grounds for granting
asylum.5 The State party emphasizes that its authorities are well positioned to assess asylum
seekers’ claims and that both the Migration Agency and the Migration Court thoroughly
examined the author’s case. The author had an introductory and an extensive interview before
the Migration Agency and a hearing before the Migration Court, all in the presence of counsel
and an interpreter. Furthermore, he was invited, through his counsel, to make written
submissions and thus had ample opportunity to explain his case. As the authorities had
sufficient information to assess his case, and given their expertise in asylum, there is no
reason to conclude that the domestic rulings were inadequate or arbitrary or amounted to a
denial of justice. The State party concludes that considerable weight must be attached to the
assessments of its authorities.
4.4
Second, referring to the asylum procedure, the State party observes that the author
applied for asylum in Sweden on 25 July 2015. He claimed that a forced return to the Islamic
Republic of Iran would put him at risk of treatment justifying the granting of protection on
the ground of a threat against him from the relatives of a person who had died in a motorcycle
accident in which he was involved. He also claimed that there was a threat against him in
Afghanistan due to the general security situation and because he was Hazara. The State party
notes that the author does not invoke these circumstances before the Committee. It observes
that, other than his Afghan nationality, he has not plausibly demonstrated his claimed identity
in the domestic proceedings. Furthermore, he has not contended before the Committee that
the general security situation in Afghanistan or the situation of Hazaras is such that any
returnee risks exposure to ill-treatment. As neither of these situations constitute grounds for
protection, the Migration Agency rejected the asylum application and decided to remove the
author to Afghanistan on 13 April 2016.
4.5
On appeal before the Migration Court, the author added to the initial grounds that he
had become interested in Christianity, had been attending church activities, had been baptised
and that he would live as a Christian and wear a cross in Afghanistan. The Migration Court
noted that his interest in Christianity appeared to have increased significantly in connection
with and after the first-instance decision, raising doubts about the credibility of his conversion.
His explanation that he had withheld this information so as to protect his privacy was
4
5
The author refers to the following: Office of the United Nations High Commissioner for Refugees,
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers
from Afghanistan (30 August 2018), p. 89; and European Asylum Support Office, Country Guidance:
Afghanistan – Guidance Note and Common Analysis (June 2018), p. 58.
The State party refers to the Aliens Act, chap. 4, sects. 1–2, and chap. 12, sects. 1–3 and 18–19.
3