CCPR/C/132/D/3266/2018
to the fact that he grew up in a homophobic country. When he started a relationship in Sweden,
he was at first afraid that the situation in the Islamic Republic of Iran would repeat itself, that
is, that people would treat him the way he was treated in that country. He has explained that
he was afraid that rumours would spread. Furthermore, he argues that no consideration was
made for the fact that he was not used to talking about his sexuality, or for cultural differences
between Sweden and Afghanistan. Sweden is an individualistic society and Afghanistan is
not. Citizens of Afghanistan often do not have the experience to reflect on questions
involving oneself, and questions relating to one’s personality. It is especially hard to reflect
on issues that are taboo.
5.6
The author reiterates his arguments that he would be at risk of treatment contrary to
article 7 of the Covenant owing to his conversion to Christianity. He argues that he has clearly
expressed his reasons for converting and that the conversion is genuine. He further argues
that in cases such as his, it is important to assess the cumulative effect of the risks when an
asylum seeker belongs to several vulnerable groups or risk profiles. The needs for protection
(apostasy and sexuality) are intertwined and together they constitute a great part of his
identity. In his case, his religion and sexuality are intertwined and his choice to convert and
to leave Islam is linked to his sexuality and the severe harassment that he has previously
faced.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claims contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
6.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
6.3
The Committee notes the State party’s submission that the author’s claims under
article 17 of the Covenant should be declared inadmissible for failure to exhaust all available
domestic remedies as the author has not raised those claims before the domestic authorities.
The Committee notes the author’s argument that he cannot exhaust his claims under article
17 of the Covenant in the State party as residence permits are usually only granted to
applicants based on family connection such as that to a child, which is not the case in his
situation. The Committee recalls its jurisprudence that, although there is no obligation to
exhaust domestic remedies if they have no prospect of being successful, authors of
communications must exercise due diligence in the pursuit of available remedies and that
mere doubts or assumptions about their effectiveness do not absolve the authors from
exhausting them.2 The Committee observes that, in the present case, the author has not made
any attempt to raise his claims under article 17 of the Covenant before the domestic
authorities. The Committee therefore finds his claims under article 17 of the Covenant to be
inadmissible under article 5 (2) (b) of the Optional Protocol.
6.4
The Committee notes the author’s claims that his deportation to Afghanistan would
expose him to a real risk of treatment contrary to article 7 of the Covenant because of his
sexual orientation and his conversion to Christianity. The Committee notes the State party’s
submission that the author has failed to substantiate his claims for the purposes of
admissibility. It notes the State party’s argument there is no reason to conclude that the
decisions of the domestic authorities were inadequate or that the outcome of the domestic
proceedings was in any way arbitrary or amounted to a denial of justice. It notes the State
party’s argument that the Migration Agency held two separate investigations with the author
lasting a total of five hours and focusing on his alleged sexual orientation, in which a
specialist took part, but that the author’s account was found to be vague and lacking in detail
and personal perception. The Committee further notes the State party’s argument that the
2
See, inter alia, V.S. v. New Zealand (CCPR/C/115/D/2072/2011), para. 6.3; García Perea v. Spain
(CCPR/C/95/D/1511/2006), para. 6.2; and Vargay v. Canada (CCPR/C/96/D/1639/2007), para. 7.3.
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