CCPR/C/126/D/2685/2015
high.36 Thus, all relevant facts and circumstances must be considered, including the general
human rights situation in the author’s country of origin. 37
9.4
The Committee recalls that it is generally up to the organs of the State party to examine
the facts and evidence of the case in question in order to determine whether such a risk
exists,38 unless it can be established that the assessment was clearly arbitrary or amounted to
a manifest error or denial of justice. 39
9.5
The Committee notes the finding of the Refugee Appeals Board that the authors failed
to establish that there are substantial grounds for believing that, as a result of their extramarital relation, they would risk the death penalty or be in danger of being subjected to
inhuman or degrading treatment or punishment if returned to Afghanistan, and that they
lacked credibility. In that respect, the Committee notes that the Board found inconsistencies
in the authors’ statements with regard to the timing of their sexual intercourse, their regular
contact, F.M.’s escape and the killing of R.M.’s brother by F.M.’s family.
9.6
Nonetheless, the test for the Committee remains to establish whether, regardless of
the veracity of an asylum seeker’s statements, there are substantial grounds for believing that
the circumstances invoked may have serious adverse consequences in the country of origin
such as to create a real risk of irreparable harm, as contemplated by articles 6 and 7 of the
Covenant. Therefore, even when it is found that an asylum seeker’s story is inconsistent on
some points, the authorities should proceed to assess whether, in the circumstances of the
case, the asylum seeker’s behaviour and activities in connection with or to justify his or her
declarations could have serious adverse consequences in the country of origin such as to put
him or her at risk of irreparable harm. 40
9.7
In the present case, the Committee observes that it is uncontested that the authors had
an extramarital sexual relationship, and that what is contested is mainly the circumstances in
which such relationship evolved. The Danish authorities have also not contested that the
authors’ first child was conceived in Afghanistan or that the authors were not married at that
time. Also, Danish authorities rejected the authors’ evidence in respect of the killing of
R.M.’s brother as being fabricated for the occasion, without, however, verifying the facts,
but rather relying solely on the general observation that false documents are widely available
in Afghanistan and that there is a black market for them. The Committee notes that the Board
based its reasoning on the inconsistencies in the authors’ statements, concluding that they
had failed to render probable a risk of persecution or abuse by family members or third
persons.
9.8
The Committee recalls that States parties should give sufficient weight to the real and
personal risk that a person might face if deported, and considers that it was incumbent upon
the State party to undertake an individualized assessment of the risk that the authors and their
children would face in Afghanistan rather than focus on certain inconsistencies in their
statements. The Committee notes, in particular, that the Board did not assess whether the
authors’ extramarital relationship could have serious adverse consequences in the country of
origin so as to put them at risk of irreparable harm. In the light of the above, the Committee
considers that the State party failed to adequately assess the authors’ real, personal and
foreseeable risk of returning to Afghanistan. It therefore finds that the State party failed to
take into due consideration the consequences of the authors’ personal situation in their
country of origin.
10.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the authors’ removal to Afghanistan would, if implemented, violate their rights under articles
6 and 7 of the Covenant.
36
37
38
39
40
See X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18.
Ibid. See also X v. Denmark, para. 9.2.
See 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.
See, mutatis mutandis, S.A.H. v. Denmark (CCPR/C/121/D/2419/2014), para. 11.8, and F.G. v. Sweden,
para. 156.
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