CCPR/C/132/D/3266/2018
and appeals. It follows from this background that he has had ample opportunities to explain
the relevant facts and circumstances in support of his claims and to argue his case, both orally
and in writing, before the Migration Agency and the Migration Court. The State party
therefore submits that it must be considered that the Migration Agency and the Migration
Court have had sufficient information, together with the facts and documentation in the case,
to ensure that they had a solid basis for making a well-informed, transparent and reasonable
risk assessment concerning the author’s need for protection in the State party. In view of the
fact that the Migration Agency and the migration courts are specialized bodies with particular
expertise in the field of asylum law and practice, the State party argues that there is no reason
to conclude that the national rulings were inadequate or that the outcome of the domestic
proceedings was in any way arbitrary or amounted to a denial of justice. It submits that
returning the author to Afghanistan would therefore not entail a violation of his rights under
article 7 of the Covenant.
4.6
The State party notes that in his initial application for asylum, the author stated that a
forced return to Afghanistan would put him at risk of being killed or subjected to violence
since he was a Hazara and due to the general security situation there. He also claimed that he
was at risk of being forced to become a suicide bomber. The domestic authorities considered
that he had not plausibly demonstrated that there was a threat against him in Afghanistan
because he was a Hazara or because of the general security situation in Afghanistan.
Furthermore, there was nothing to suggest that he would be forced to become a suicide
bomber.
4.7
The State party notes that it was only while the author was placed in detention on 4
December 2017 and awaiting expulsion that he first claimed that he was homosexual and that
he had converted from Islam to Christianity. It notes that pursuant to chapter 4, section 1, of
the Aliens Act, a risk of persecution due to sexual orientation can constitute a ground for
protection. On 2 October 2015, the Swedish Migration Agency adopted a general legal
position paper concerning the method for a forward-looking risk assessment of a cited need
for protection on grounds of sexual orientation, transgender identity or expression. According
to that paper, an applicant must first plausibly demonstrate that he or she belongs to or is
perceived in his or her country of origin as belonging to, a group that risks persecution on
those grounds. It is furthermore emphasized that the task of the Agency is not to determine
an applicant’s sexual orientation but to assess whether an asylum seeker has plausibly
demonstrated that he or she belongs to such a group.
4.8
The State party also refers to the judgment of the European Court of Human Rights in
M.K.N. v. Sweden,1 in which the Court assessed the credibility of the applicant’s claim that
he would be subjected to treatment contrary to article 3 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (European Convention on Human Rights)
owing to an alleged homosexual relationship. The Court found that the applicant had not
presented a reasonable explanation for not having invoked his claim regarding his sexual
orientation until the appeal against the Migration Agency’s expulsion order, more than one
year after his arrival in Sweden. With regard to the circumstances of that case, the Court
considered that the applicant’s claim concerning the cited homosexual relationship was not
credible.
4.9
The State party reiterates that the Migration Agency held two separate investigations
with the author lasting a total of five hours and focusing on his alleged sexual orientation. A
specialist also took part in the assessment. Despite the author being given ample opportunities
to explain his cited need for protection, both orally and in writing, the Agency, inter alia,
considered his account to be vague and lacking in detail regarding his personal perception of
and feelings related to his alleged sexual orientation. During the asylum investigations, he
was given the opportunity to describe his alleged relationship in the Islamic Republic of Iran
and to explain how he perceived his sexual orientation during his childhood. The author
stated that he had felt ashamed after he was discovered together with the boy by his mother,
and afterwards felt different since his mother had become upset. However, the Agency noted
that he had been unable to explain how his alleged shame was expressed in his daily life or
1
4
European Court of Human Rights, M.K.N. v. Sweden, Application No. 72413/10, Judgment, 27 June
2013.