CAT/C/78/D/1047/2021 Consideration of the merits 7.1 The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention. 7.2 In the present case, the issue before the Committee is whether the forcible removal of the complainant to Afghanistan would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (refouler) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. 7.3 The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Afghanistan. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances. 7.4 The Committee recalls its general comment No. 4 (2017), according to which the Committee will assess substantial grounds and consider the risk of torture as foreseeable, personal, present and real when the existence of credible facts relating to the risk by itself, at the time of its decision, would affect the rights of the complainant under the Convention in case of his or her deportation. Indications of personal risk may include, but are not limited to: (a) the complainant’s ethnic background; (b) political affiliation or political activities of the complainant or his or her family members; (c) arrest or detention without guarantee of fair treatment and trial; (d) sentence in absentia; and (e) previous torture.30 With respect to the merits of a communication submitted under article 22 of the Convention, the burden of proof is upon the author of the communication, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, present, personal and real.31 The Committee also recalls that it gives considerable weight to findings of fact made by organs of the State party concerned, however it is not bound by such findings, as it can make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.32 7.5 In that context, the Committee notes that the complainant had not yet converted to Christianity and the issue of the complainant’s conversion was therefore not assessed by the Swedish Migration Agency when it examined complainant’s asylum application or when it rendered its decision on the complainant’s case on 7 August 2018, and it thus constituted new grounds for his asylum claim when he appealed to the Migration Court. The State party has acknowledged that, in a situation where new grounds for protection are cited in connection with an appeal of a decision by the Migration Agency, the Migration Court of Appeal has stated that the Migration Court has a responsibility to ensure that the new grounds are sufficiently investigated before ruling on the question of a residence permit. The Committee takes note of the view of the State party that the review conducted by the Migration Court was sufficient. The Committee observes, however, that the Migration Court could have but did not remit the case to the Migration Agency for reconsideration, and recalls that doing so would have allowed the matter, including any questions regarding the credibility of the complainant’s claim of conversion, to be analysed in detail, as a whole with other risk factors, 30 31 32 12 General comment No. 4 (2017), para. 45. Ibid., para. 38. Ibid., para. 50. GE.23-24373