CAT/C/71/D/913/2019
L.H. had been threatened over the phone. The complainants have not provided any acceptable
or reasonable explanation as to why they would withhold such important information while
at the same time claiming that there is a threat to their lives. Consequently, the veracity of
the complaint can be seriously questioned. The State party holds that the inconsistencies and
escalations in the complainants’ account cast serious doubts on the credibility of their claims.
4.27 In summary, and with reference to the above, the State party holds that the
complainants’ account and the facts relied upon in their complaint are insufficient to conclude
that the alleged risk of ill-treatment upon their return to the Russian Federation meets the
requirements of being foreseeable, present, real and personal. Consequently, an enforcement
of the expulsion order would not, under the present circumstances, constitute a violation of
the obligations of Sweden under article 3 of the Convention.
Complainants’ comments on the State party’s observations on admissibility and the
merits
5.1
On 22 November and 20 December 2019, the complainants submitted that, with
regard to the application for a re-examination, it was an extraordinary remedy in Sweden and
therefore not a part of the ordinary process. After the decision becomes legally binding, the
applicant does not have the right to a re-examination of the reasons stated. However, the
applicant may be granted a new examination if new circumstances have arisen that have not
been previously examined and which imply that there is a risk that the applicant will be
exposed to treatment justifying international protection. An application for a re-examination
does not entail a new examination of the case but an opportunity for the applicant to get a reexamination of the case. That, in turn, means that the opportunity to submit an application
for a re-examination does not give the applicant an automatic right to have his or her stated
reasons examined, but it does give the applicant an opportunity to apply for a re-examination
and to be notified if the Swedish authorities intend to re-examine the case. In some cases, and
in certain circumstances, the applicant may be granted a re-examination.
5.2
In order for a re-examination to be granted, as mentioned above, it is necessary that
the grounds stated by the applicant are entirely new circumstances that have not previously
been examined. It is established in Swedish law and case law that new evidence cannot
constitute new circumstances. That means that the complainants cannot or could not get what
the State party refers to as “new” evidence tried by the Swedish migration authorities.
Therefore, even if the complainants would apply for a re-examination, it is clear in the light
of Swedish law and established practice that they could not be granted a re-examination of
their stated grounds or that their expulsion could in any way be prevented. Consequently, that
procedure does not constitute a way for the complainants to obtain a residence permit in the
way that the State party is trying to imply. The fact that Swedish law offers the opportunity
to submit an application for a re-examination as an extraordinary remedy for all applicants
whose decisions have become legally binding cannot affect the assessment of whether or not
the appellant has exhausted all domestic remedies. The fact that L.H. and M.H. did not pursue
their appeal in the latter processes, due to lack of help from a lawyer and understanding of
the process, therefore has no bearing on the complainants’ right to have their case examined
by the Committee.
5.3
The complainants submit that the majority of the written evidence that the State party
refers to as new evidence with new information has been available to the Swedish Migration
Board and the Migration Court throughout the national process. Some information was
available on the Internet, but, nevertheless, the national authorities have not endeavoured to
investigate that further. The fact that some evidence to corroborate the complainant’s story
was not previously presented to the domestic authorities cannot lead to the conclusion that
the complainants have not exhausted all domestic remedies. The evidence relates only to the
reasons already stated by the complainants and does not therefore constitute support for any
new reasons or new circumstances. In other words, the evidence submitted to the Committee
is intended solely to substantiate the complainants’ account, that is, information that the
Swedish authorities have had access to throughout the process.
5.4
L.H. submits the following in relation to two arrest warrants, which were issued
against her in July 2015 and August 2017. Given that she previously submitted an arrest
warrant from 2012 in her name to the Swedish Migration Board, the arrest warrants from
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