CAT/C/48/D/364/2008
that they had given in Kinshasa, were well integrated and were in no danger. The
authorities in charge of applications for asylum also pointed out that the children’s
statements concerning their departure from Kinshasa were inconsistent. The children
claimed that a “white female” had taken them first to South Africa by plane and then to
Switzerland by train. However, the investigation shows that the children were brought to
Switzerland directly, without transiting through South Africa. Moreover, the Work for the
Rehabilitation and Protection of Street Children (ORPER) in Kinshasa has stated, in a
document appended to the present complaint, that the complainant’s children had stayed in
centres run by that organization from 6 November 2003 to 2 July 2005, the date on which
they left the Democratic Republic of the Congo. Yet, during the asylum proceedings, the
children said that they had stayed with their mother until their departure.
4.11 The State party questions the truth of the complainant’s claims that his wife has
died, which was the basis for his request for reconsideration. Indeed, only a copy of the
death certificate was submitted to the Swiss authorities, and the complainants have not
disclosed the exact circumstances under which they obtained that document to the
authorities. In particular, the complainant has not divulged the name of the person who sent
him the fax informing him of his wife’s death.
4.12 Regarding the state of health of the complainant and his children, the State party
asserts that this does not constitute a criterion for determining whether there are substantial
grounds for believing that they would be in danger of being subjected to torture if they were
deported. In this regard, the State party refers to the Committee’s jurisprudence, according
to which the aggravation of a person’s state of physical or mental health owing to his or her
deportation is generally insufficient, in the absence of additional factors, to amount to
degrading treatment that would be in violation of article 16 of the Convention.3 The
complainant informed the Swiss authorities that he suffered from tuberculosis. However,
according to a medical report of 4 April 2005, his medical treatment for tuberculosis has
been completed. Moreover, in the event of a relapse, treatment for this illness is available in
Kinshasa, sometimes even free of charge.
4.13 Where the children are concerned, as the Federal Administrative Tribunal found in
its judgement of 24 September 2008, their state of health cannot be considered sufficiently
serious as to put them in any real danger if they were returned to their country of origin.
There is nothing to indicate that they will require extensive treatment that could not be
provided in the Democratic Republic of the Congo in the near future. In the event that the
financial support they receive from their family in Kinshasa does not suffice to allow them
to continue a proper course of treatment, the complainant may seek repatriation aid from
the Federal Office for Migration, as well as assistance on an individual basis to help him
cover the cost of medical care for a reasonable period of time. Although it has been
established that the complainant comes from a privileged family, given that he himself has
a university education, the Federal Administrative Tribunal has proposed a deadline for
departure that takes into account the requirements of the course of treatment that is now
under way. The Tribunal also maintains that a deterioration in the psychological health of
persons whose asylum claims have been rejected is commonplace, but that this should not
necessarily be viewed as a serious obstacle to the individual’s deportation.
4.14 Regarding the report from the school psychological support services of the city of
Zurich dated 19 November 2008, the Tribunal has some reservations about the portion of
the diagnosis which indicates that the children run a greater risk of suicide and that their
pre-existing symptoms have been aggravated by the news of their mother’s death. The case
3
6
The State party cites A.A.C. v. Sweden, communication No. 227/2003, decision adopted on 16
November 2006, para. 7.3.
GE.12-43679