CAT/C/78/D/1047/2021
and a decision to be reached on the basis of oral interviews in which the complainant’s
credibility and other factors could have been objectively assessed. 33 The Committee further
observes that, in the course of its consideration of the matter, the Migration Court accepted
and appears to have acted upon the basis of a submission from the Migration Agency, which
represented that the complainant’s conversion had not been genuine, notwithstanding that the
issue of the genuineness of the conversion had not been examined as part of the proceedings
before the Migration Agency and thus could not have been examined by the Migration
Agency in advance. In this connection, the Committee takes note of concerns expressed by
the complainant about the role of the Migration Agency in proceedings before the Migration
Court, where it acts as an interested party, rather than as an assessor of credibility and finder
of fact. The Committee also takes note of the dissenting opinion of the presiding judge in the
case, who found “no reason to question the genuineness” of the complainant’s account of his
conversion.
7.6
The Committee also considers that the risks faced by the complainant were also
insufficiently assessed in connection with his claims relating to his contention that he had
been subjected to torture when he was abducted and raped by members of the Taliban and
that he faced a substantial risk of being similarly abused if forced to return to Afghanistan.
The Committee notes that both the Migration Agency and the Migration Court agreed that
the complainant had provided a reliable account of his ordeal of being repeatedly raped and
tortured as a child in Afghanistan, but were not satisfied that he had established that it was
members of the Taliban who had perpetrated the abuses, notwithstanding his descriptions of
the way the perpetrators were dressed and their appearance, which the complainant notes
would be well-known to any person in Afghanistan, and the overall context of general
country information regarding widespread reports of human rights abuses and torture
perpetrated by members of the Taliban. The Committee considers that, in view of the totality
of the credibility of the account that the complainant has put forward, including the fact that
the State party has acknowledged the credibility of the complainant’s account and also
including the documentation from the psychologist/psychotherapist concluding that the
complainant suffers from post-traumatic stress disorder due to the abuse that he suffered
during his childhood, it would be unreasonable to expect the complainant to be required to
produce documentary evidence, beyond his testimony, that established the identity of the
perpetrators as members of the Taliban.34 In addition, the Committee notes that the mere fact,
even if true, that persons other than members of the Taliban had kidnapped and raped the
complainant when he was a child, would not resolve questions relating to the risk of the
re-traumatization of the complainant if he were forced to return to Afghanistan.
7.7
The Committee considers that, whether or not the conclusion of the Swedish
authorities was warranted when they originally considered the claim of the complainant, the
risk profile for a person such as the complainant, including with regard to his ethnic identity,
the risks associated with the allegations of his past abuse by members of the Taliban and his
conversion to Christianity, and the overall human rights situation in the country have
fundamentally changed in view of the vastly different circumstances now prevailing in
connection with the change of government in Afghanistan. The State party acknowledges
this by virtue of its representation to the Committee that the Migration Agency decided, on
16 July 2021, to suspend all enforcement of deportations to Afghanistan because of the
worrying situation and the difficulty of assessing it, noting that the State party would inform
the Committee regarding any developments relating to that suspension.
7.8
In the light of this fundamental change of circumstances, the Committee considers
that it would be inconsistent with the obligations of the State party under article 3 of the
Convention if it were now to remove the complainant to Afghanistan on the strength of its
assessment of the situation in Afghanistan as it existed at the time of the decisions of the
Migration Agency and the Migration Court. The Committee observes that if, at some future
point in time, the State party seeks to move forward with the removal of the complainant to
Afghanistan, it would need to make a decision on the basis of an individualized assessment
33
34
GE.23-24373
Human Rights Committee, Q.A. v. Sweden, para. 9.7.
General comment No. 4 (2017), para. 38; and European Court of Human Rights, R.C. v. Sweden,
paras. 50–52.
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