CAT/C/28/D/180/2001
page 7
cohabitation with his Danish spouse. On 4 April 2001, the Danish Immigration Service again
refused to extend the complainant’s residence permit, as he no longer cohabited with his spouse.
The Ministry of the Interior fixed the time limit for departure from Denmark on 9 May 2001.
4.5
The State party submits that the Refugee Board’s decision to reject the complainant’s
application for asylum was based on a concrete and individual assessment, and reiterates that
there are no substantial grounds for believing that returning the complainant to Libya will mean
that he would be in danger of being subjected to torture. In this connection, the State party refers
to the decision of the Refugee Board, and emphasizes that the Ministry of Foreign Affairs has
investigated the matter and reported that many Libyan nationals, who had left Libya illegally,
had returned without major problems. Furthermore it was stated that Libyan nationals returning
to Libya after more than one year’s stay abroad, are detained and questioned by the authorities
and then released. Moreover, it is argued that since it is practically impossible for a Libyan
national to have his passport extended if he is an object of interest to the authorities, the issuance
of a passport to the complainant indicates that he is not a priori a person at risk. In this
connection, the State party points out, with reference to I.O.A. v. Sweden1 that a risk of being
detained as such is not sufficient to bring a case within the scope of article 3 of the Convention.
4.6
Furthermore, when assessing the complainant’s credibility, the State party points out that
the Refugee Board was unable to find that the complainant had been subjected to the treatment
alleged, since his statement was not supported by the medical report available, and since no
detailed psychological examination nor a diagnosis have been submitted. Even if it is assumed
that the complainant had been subjected to the alleged outrages, the State party refers to the
Committee’s jurisprudence (A.L.N. v. Switzerland and X, Y and Z v. Sweden2) that past torture
is only one of the elements to be taken into account when examining a claim under article 3 of
the Convention, and the object of considering the case is to decide whether, if returned to the
country of origin, the complainant would risk being tortured.
4.7
The State party further submits that the events, which, according to the complainant,
motivated his departure from Libya, date relatively far back in time, and that his family has not
been sought or harassed on account of the complainant since his brother’s arrest and release
in 1996.
4.8
Reference is made to the case Tahir Hussain Khan v. Canada3, where the Committee
found that the complainant, if returned to his country of origin which was not a State party to the
Convention, would no longer have the possibility of applying to the Committee for protection,
unlike the present case where the complainant only risks being returned to a country that has
acceded to the Convention.4
The complainant’s comments to State party’s observations
5.1
In a letter dated 1 August 2001, the complainant states that the State party’s references to
the letter from the Ministry of Foreign Affairs dated 30 January 1998, are not relevant to the
case, since the letter allegedly only is about whether Libyan nationals who had left Libya
illegally will have problems if returned, and whether it is possible for a Libyan national to have
his passport extended if he is an object of interest to the authorities. However, he concedes the