CAT/C/46/D/379/2009
(hereinafter UNHCR Handbook), the cases when an asylum seeker can provide evidence
for all his/her statements will be the exception rather than the rule. In most cases when a
person is fleeing from persecution, she very frequently arrives in another country without
any personal documents, i.e. identity card. The author submits that she had never had a
passport, but the identity card she had was most likely taken by the security forces at the
time of her arrest. She refers to the conclusion of the language analysis, according to which
her mother tongue is Tchilouba and she has a level of French typical of the less educated in
DRC. Therefore it is likely that she originates from the region from which she claims to be.
She also recalls that a person who is not in DRC cannot obtain identity documents without
personal appearance, as confirmed by the Swedish embassy in Kinshasa. The author affirms
that she has not been able to make contact with her family, although she tried to locate them
with the assistance of the Red Cross, without success.
5.4
As to the error in spelling the name of the pastor, the complainant affirms that it is
attributable to the counsel and the interpreter. She also explains that her medical reports
were issued by a psychotherapist who treated her for more than half a year and they support
her allegations of having been imprisoned and subjected to torture and ill-treatment. The
author further claims that, although she does not consider herself to have been politically
active per se, she feels a well-founded fear of persecution due to her religious/political
beliefs and the fact that the pastor had criticized the regime. As to the details surrounding
her escape, the author maintains that she was helped by people from the parish, i.e. by
Douglas M. whom she knew through the parish and her friends there.
5.5
The complainant claims that, although she did not commit any criminal act, she
criticized the regime and was therefore imprisoned and subjected to torture. Upon return to
DRC, she will be punished and again imprisoned for her religious/political beliefs and for
having escaped from prison. She maintains that her return to DRC would amount to a
violation by Sweden of article 3 of the Convention.
Additional observations by the State party
6.1
In its submission of 23 April 2010, the State party refutes the author’s argument that
the migration authorities’ assessment of whether an expulsion would violate article 3 of the
Convention is made on the basis of the same assessment as when determining refugee
status, and points out that the examination under the Aliens Act is the same as the one made
under article 3 of the Convention and actually goes further as the alien is also protected
from being sent to a country where he or she would risk the death penalty or inhuman
treatment or punishment, which is not covered by the prohibition of non-refoulement in
article 3 of the Convention.
6.2
As regards the complainant’s claim that she has adduced written evidence in
support of her claims, the State party recalls that the complainant has not submitted any
documents to substantiate her alleged membership of the parish. Furthermore, the medical
shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to
use all the means at his disposal to produce the necessary evidence in support of the application. Even
such independent research may not, however, always be successful and there may also be statements
that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should,
unless there are good reasons to the contrary, be given the benefit of the doubt”. See the UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1.
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