CAT/C/47/D/374/2009
complaint under the Convention. The national authorities conducting the asylum interview
are in a very good position to assess the credibility of a claim that a person, in the event of
deportation, would run the risk of being subjected to treatment that would violate article 3
of the Convention. The complainants' case has been brought before the Swedish authorities
and courts on a number of occasions. The Migration Board and the Migration Court have
made thorough examinations of their applications for a residence permit, as well as their
request for re-examination. Therefore, great weight must be attached to the decisions of the
Swedish authorities.
4.15 The State party maintains that the complainants' claims under article 3 of the
Convention are unsubstantiated, since the information provided is inconsistent, vague and
to some extent contradictory. H.M. provided a document from an organization working to
strengthen the rights of Azerbaijani women, in which it is stated that S.M. and H.M. have
always belonged to the political opposition. This statement was disclaimed by H.M. during
the oral hearing. The document thus contained information which was not consistent with
her oral submissions and information submitted previously in the proceedings, therefore it
was deemed to have low value as evidence. With regard to the medical opinions submitted
by the complainants (para. 4.4 above), they were found not conclusive. One of the medical
experts met with H.M. on only one occasion. The forensic certificate was deemed very
vague since it only stated that it cannot be ruled out that S.M. suffered his injuries in the
way he had described. Another certificate only stated that H.M. might have been subjected
to torture; this statement was too vague to substantiate their allegations of past ill-treatment.
4.16 Amnesty International and UNHCR submitted written communications to the
Migration Court in support of the complainants' case. Amnesty International stated that if
forced to return to Azerbaijan, the complainants would risk again being subjected to
persecution that by its nature and extent would be grounds for asylum and they should be
granted protection in Sweden. A UNHCR document stated that Armenians and those of
mixed ethnicity who return after having sought asylum abroad run a high risk in
Azerbaijan. The document also stated that it was doubtful whether Azerbaijan would take
them back, and if they were accepted, there was a great risk that they would come under
pressure from the security services or be treated without sympathy by the majority of the
population. The State party argues that the submissions by Amnesty International and
UNHCR are not pertinent to the complainants' case. According to S.M.'s birth certificate,
his father was an Azerbaijani citizen and his mother was of Armenian descent. His surname
is typical for a person of Azerbaijani origin and their children's birth certificates show that
both complainants are registered as ethnic Azerbaijanis. The family was received as
Azerbaijani citizens at the time of their deportation from Sweden. According to UNHCR,
they would most probably not have been received in the country if they had been registered
as ethnic Armenians or as being of mixed ethnicity, therefore the State party submits that it
is doubtful that the complainants would be considered by the Azerbaijani authorities or by
others as being Armenians or of mixed ethnicity. It also recalls that as recently as 2000,
S.M. had been issued a new driving licence, and in 2004, the complainants had obtained
new passports.
4.17 The State party further states that even if the complainants were considered to be of
mixed ethnicity, they have not substantiated that they would risk treatment in violation of
article 3 of the Convention. It concedes that the Armenian population and those of mixed
ethnic origin face difficulties in Azerbaijani society. However, according to the UNHCR
report, “International Protection Considerations Regarding Azerbaijani Asylum-Seekers
and Refugees” of September 2003, although discrimination against Armenians is tolerated
by the authorities to some extent, it is not an official policy in the country and the level of
discrimination is not such as to amount to persecution. The State party maintains that there
is nothing to suggest that the general situation of Armenians in Azerbaijan is worse than in
2003; on the contrary, recent reports seem to indicate a slight improvement in this regard.
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