CAT/C/60/D/653/2015
the Board considered it a fact that an asylum seeker had been subjected to torture and risked
being subjected to torture in connection with persecution for reasons falling within the
scope of the Convention relating to the Status of Refugees in case of return to his or her
country of origin, the Board would grant residence under section 7 (1) of the Aliens Act
(“Convention status”), provided that the conditions for doing so had otherwise been met.
Furthermore, following a specific assessment, a residence permit could be granted under
section 7 (1) of the Aliens Act if an asylum seeker was found to have been subjected to
torture before fleeing to Denmark and his or her substantial fear resulting from the abuse
was therefore considered to be well founded, even though an objective assessment indicated
that return would not entail any risk of further persecution.
4.7
Moreover, the Refugee Appeals Board would find that the conditions for granting
residence under section 7 (2) of the Aliens Act (“protection status”) were met if specific
and individual factors rendered it probable that the asylum seeker would be at a real risk of
being subjected to torture in case of return to his or her country of origin. The fact that an
asylum seeker had been subjected to torture might also have an impact on the assessment of
evidence made by the Board because individuals who had previously been subjected to
torture could not always be expected to give an account of the facts of the case in the same
way as individuals who had not been subjected to torture. That approach reflects the
approach described in the Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to
the Status of Refugees of the Office of the United Nations High Commissioner for
Refugees.6
4.8
Where torture was invoked as one of the grounds for applying for asylum, the
Refugee Appeals Board might sometimes find it necessary to obtain additional details on
such torture before making a determination on the case. It may, for example, order that the
asylum seeker be examined for signs of torture. Any such decision would typically not be
made before a hearing before the Board, as the Board often needed to hear the asylum
seeker’s statement and assess his or her credibility. If the Board considered that the asylum
seeker had been or might have been subjected to torture but found, upon assessing the
asylum seeker’s situation, that there was no real risk of torture upon return at that time, it
would normally not order an examination. The Board would not normally order an
examination for signs of torture when the asylum seeker lacked credibility throughout the
proceedings, in which case the Board would have to reject the asylum seeker’s statement
about torture in its entirety.
4.9
Concerning the weight given to the asylum seeker’s credibility relative to that given
to the medical information available, the State party referred to the Committee’s decision in
communication No. 209/2002, M.O. v. Denmark,7 in which the complainant’s statements on
torture and the relative medical information provided were set aside owing to the
complainant’s general lack of credibility. In that decision, the Committee referred to
paragraph 8 of its general comment No. 1 (1997) on the implementation of article 3,
pursuant to which questions about the credibility of a complainant and the presence of
relevant factual inconsistencies in the claim were pertinent to the Committee’s deliberations
as to whether the complainant would be in danger of being tortured upon return. The State
party also referred to the Committee’s decision in communication No. 466/2011, Alp v.
Denmark,8 in which it found that the State party’s authorities had thoroughly evaluated all
the evidence presented by the complainant, had found the complainant to lack credibility
and did not consider it necessary to order a medical examination. It further referred to
paragraphs 77-82 of the judgment delivered by the European Court of Human Rights on 20
March 1991 in Cruz Varas and Others v. Sweden (application No. 15576/89).
4.10 When torture was invoked as a ground for claiming asylum, factors like the nature of
the torture, including the extent, grossness and frequency of the abuse, and the asylum
seeker’s age might be accorded importance in the determination of the case. It was
6
7
8
4
May 2014.
The State party referred to paragraphs 207-212 of the handbook.
Decision adopted on 12 November 2003, paras. 6.4-6.6.
Decision adopted on 14 May 2014.