CCPR/C/127/D/3070/2017
of admissibility. Accordingly, it declares that part of the communication inadmissible under
article 2 of the Optional Protocol.35
8.5
The Committee notes the State party’s challenge to admissibility on the grounds that
the author’s claim under articles 6 and 7 of the Covenant is unsubstantiated. However, the
Committee considers that, for the purposes of admissibility, the author has provided
sufficient information in support of the claim that his forcible return to Afghanistan would
result in a risk of treatment contrary to articles 6 and 7 of the Covenant. Therefore, the
Committee declares the communication admissible, insofar as it raises issues under articles
6 and 7, and proceeds to its consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the present communication in the light of all the
information submitted by the parties, in accordance with article 5 (1) of the Optional
Protocol.
9.2
The Committee notes the author’s claim that returning him to Afghanistan would
expose him to a real risk of irreparable harm, in violation of articles 6 and 7 of the
Covenant. He alleged that, if returned to Afghanistan, he would face potentially life
threatening persecution due to his particular vulnerability related to his apostasy, which has
been publicized through social media, his deteriorating mental and physical condition,
which includes suicidal ideation, his belonging to the Hazara ethnic minority group and his
lack of knowledge of Afghanistan and its language, circumstances that are aggravated by
the fact that he has no family or network in Afghanistan, where the security situation has
seriously deteriorated.
9.3
The Committee recalls its general comment No. 31 (2004) on the nature of the
general legal obligation imposed on States parties to the Covenant, in which it referred to
the obligation of States parties not to extradite, deport, expel or otherwise remove a person
from their territory when there were substantial grounds for believing that there was a real
risk of irreparable harm such as that contemplated by articles 6 and 7 of the Covenant. 36
The Committee has also indicated that the risk must be personal 37 and that there is a high
threshold for providing substantial grounds to establish that a real risk of irreparable harm
exists. 38 All relevant facts and circumstances must be considered, including the general
human rights situation in the author’s country of origin.39 The Committee recalls that it is
generally for the organs of States parties to examine the facts and evidence of the case in
question in order to determine whether such a risk exists, 40 unless it can be established that
the assessment was clearly arbitrary or amounted to a manifest error or denial of justice. 41
9.4
In the present case, the Committee notes that, in its decision rendered in August
2017, the Migration Board found that the author had failed to substantiate his claim that he
would be at risk of persecution by the Afghan authorities and rejected his claim of atheism
as constituting new circumstances to impede the enforcement of the expulsion order. The
Committee also notes that the Migration Court considered the author’s claim of his fear of
persecution as an atheist but found that he had failed to substantiate that his convictions as
an atheist were genuine, despite the existence of letters of support, emphasizing that the
author could not explain sufficiently why he had not submitted that claim at an earlier stage
of the asylum application process. In that connection, the Committee notes the author’s
view that the assessment of his claim regarding his atheism was unfair and arbitrary, given
35
36
37
38
39
40
41
12
The Committee also notes that the author did not maintain his claim with regard to article 18 and
conceded the State party’s claim of inadmissibility ratione materiae.
Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal
obligation imposed on States parties to the Covenant, para. 12.
K v. Denmark (CCPR/C/114/D/2393/2014), para. 7.3; P.T. v. Denmark (CCPR/C/113/D/2272/2013),
para. 7.2; and X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2.
X v. Sweden, para. 5.18.
Ibid. See also X v. Denmark, para. 9.2.
Pillai et al. v. Canada (CCPR/C/101/D/1763/2008), para. 11.4; and Z.H. v. Australia
(CCPR/C/107/D/1957/2010), para. 9.3.
For example, K v. Denmark, para. 7.4.