CAT/C/78/D/1047/2021
rights abuses and torture by members of the Taliban are commonly reported. Contrary to
what the State party holds in the present case, the evidence is therefore to be considered as
substantial grounds for believing that the complainant would run a real risk of being exposed
to treatment contrary to article 3, in line with the European Court’s assessment in R.C. v
Sweden. The fact that the Migration Court found some aspects to be uncertain cannot
undermine the overall credibility of his story. The fact that the complainant has given reliable
information concerning abuse and related mental health problems is also a risk-enhancing
factor that the authorities have failed to sufficiently take into account.
5.13 The State party has claimed that the certificate from a psychologist/psychotherapist,
dated 5 December 2020, constitutes new evidence that was not invoked during the domestic
proceedings and, as such, should not be taken into account. However, as explained in the
complaint, all domestic remedies concerning this certificate have been exhausted as there is
no possibility for the complainant to receive a new examination on the merits on the basis of
the certificate. As the Committee is aware, the State party’s authorities would dismiss the
certificate as a modification and addition to the previous applications. Against this
background, the Committee should take the complainant’s stated health problems and
corroborating evidence, such as the certificate, into account.
5.14 Furthermore, the aim of article 3 (2) of the Convention is to ascertain the fact that the
complainant would personally run a foreseeable and real risk of being subjected to torture in
Afghanistan. This criterion is fulfilled in the present case. The complainant has submitted a
considerable amount of corroborating evidence in support of his claims. That evidence, which
has not been examined by the State party’s authorities, includes several testimonies as to the
complainant’s faith from pastors, church leaders and Christian friends; baptism certificates;
and photos of the complainant participating in church activities.
5.15 As regards the general decision on the suspension of removals to Afghanistan by the
Migration Agency due to the prevailing security situation in the country, the complainant
notes that the decision could be lifted at any time and his expulsion carried out. He also agrees
with the State party’s request that the Committee consider the present communication before
the decision to expel the complainant becomes statute-barred on 1 July 2024.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any complaint from an individual unless it has ascertained that the individual has
exhausted all available domestic remedies. The Committee notes that, in the present case, the
State party has not contested that the complainant has exhausted all available domestic
remedies. The Committee therefore finds that it is not precluded from considering the
communication under article 22 (5) of the Convention.
6.3
The Committee notes the State party’s argument that the communication is
inadmissible due to a lack of sufficient substantiation. The Committee considers, however,
that the arguments put forward by the complainant have been sufficiently substantiated, in
particular the allegation that he is at risk of being treated in a manner that would amount to a
violation of article 3 of the Convention, if returned to Afghanistan, considering both the
general situation for converts in his country of origin and the individual situation of the
complainant, who suffered captivity and abuse in the past. As regards the complainant’s
allegations under article 16, the Committee considers that those assertions do not raise
separate issues from the claims raised under article 3 of the Convention; therefore, the claims
under article 16 will not be considered separately. The Committee declares the claims under
article 3 of the Convention admissible and proceeds with its consideration of the merits.
GE.23-24373
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