CCPR/C/130/D/3246/2018
granted a new examination, including an interview. Insofar as he invokes his claimed
conversion, the Committee finds that the author does not demonstrate that the State party’s
authorities erred in finding that he had not shown a genuine, personal and religious conviction,
given that his account was deemed vague and that his explanation of the late invocation was
not accepted, as he had been wearing a cross openly for a year.
7.5
The Committee notes that the Swedish migration authorities did not accept the
author’s explanation of being afraid to invoke his claimed sexual orientation, based on the
absence of proof that he suffered mental health issues, the length of his residence in Sweden
and the fact that he attended school there. In particular, the Committee notes that, according
to the State party, the author admitted that he was aware of the attitudes held towards the
lesbian, gay, bisexual, transgender and intersex community in Sweden since the spring of
2016, i.e. two years before he raised the issue of his sexual orientation and gender identity,
and that he had been open about his sexual orientation while living in Sweden. In these
circumstances, the Committee finds that the author has not shown that the assessment of the
domestic authorities, in particular their finding that his claims concerning his sexual
orientation and gender identity were not credible, was unreasonable. Moreover, while the
author has submitted a note dated 16 July 2018 prepared by his counsellor concerning his
mental health, the Committee notes that he does not argue that he submitted the note to the
domestic authorities or that the domestic authorities failed to consider it.
7.6
The Committee recalls paragraph 12 of its general comment No. 31 (2004) , in which
it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove
a person from their territory when there are substantial grounds for believing that there is a
real risk of occurrence of irreparable harm, such as that under articles 6 and 7 of the Covenant.
The Committee has also indicated that the risk must be personal and that there is a high
threshold for providing substantial grounds to establish that a real risk of irreparable harm
exists.12 In making this assessment, all relevant facts and circumstances must be taken into
consideration, including the general human rights situation in the author’s country of origin.13
The Committee recalls its jurisprudence according to which considerable weight should be
given to the assessment conducted by the State party, and it reiterates that it is generally for
the organs of the States parties to the Covenant to review and evaluate facts and evidence in
a particular case in order to determine whether such a risk exists, unless it is found that the
evaluation was clearly arbitrary or amounted to a denial of justice. 14
7.7
Overall, the Committee considers that the author has not sufficiently substantiated that
the evaluations made by the Swedish authorities were clearly arbitrary or amounted to a
manifest error or denial of justice. Therefore, without prejudice to the continuing
responsibility of the State party to take into account the situation in the country to which the
author would be deported and not underestimating the concerns that may legitimately be
expressed with respect to the general human rights situation in Afghanistan, the Committee
considers that, in the light of the available information regarding the author’s personal
circumstances, his claims under article 7 of the Covenant are insufficiently substantiated and
are therefore inadmissible under article 2 of the Optional Protocol.
8.
The Committee therefore decides:
(a)
Protocol;
(b)
That the communication is inadmissible under article 2 of the Optional
That the present decision shall be transmitted to the State party and to the
author.
12
13
14
See, for example, X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2; V.R. and N.R. v. Denmark
(CCPR/C/117/D/2745/2016), para. 4.4; J.I. v. Sweden (CCPR/C/128/D/3032/2017), para. 7.3; and
A.E. v. Sweden (CCPR/C/128/D/3300/2019), para. 9.3.
Ibid.
V.R. and N.R. v. Denmark, para. 4.4; F.B.L. v. Costa Rica (CCPR/C/109/D/1612/2007), para. 4.2;
Fernández Murcia v. Spain (CCPR/C/92/D/1528/2006), para. 4.3; and Schedko v. Belarus
(CCPR/C/77/D/886/1999), para. 9.3.
7