CCPR/C/118/D/2204/2012
4.7
As to the admissibility of the communication, the State party argues that it is the
responsibility of the author to establish a prima facie case for the purpose of admissibility
of the communication under articles 2, 6, 7, 14, 18, 26 and 27 of the Covenant by satisfying
each of the requirements of rule 96 (b) of the Committee’s rules of procedure. It submits
that the claims brought by the author are not sufficiently substantiated for her to be
regarded as a victim, and that the communication should therefore be declared inadmissible.
4.8 On the merits, the State party submits that its obligations under articles 6 and 7 of
the Covenant are reflected in section 7 (2) of the Aliens Act, under which a residence
permit will be issued to an alien upon application if the alien risks the death penalty or
being subjected to torture or cruel, inhuman or degrading treatment or punishment if he or
she returned to his or her country of origin. The State party further notes that the other
obligations cited by the author, except for article 14 of the Covenant, all relate to
discrimination on the grounds of religion to which the author will allegedly be subjected if
she returns to China.
4.9
In that context, the State party recalls that the provisions of article 2 of the Covenant,
which lay down general obligations for States parties, cannot by themselves, and without
being linked to another provision, give rise to a claim in a communication under the
Optional Protocol. It also submits that, as follows from the Committee’s previous
jurisprudence in individual cases, articles 18, 26 and 27 of the Covenant do not in
themselves have extraterritorial effect, but may indirectly gain such effect if discrimination
must be expected to reach an intensity and extent which attracts the protection of the
principle of non-refoulement in article 7 of the Covenant.
4.10 As regards the assessment of whether there is a risk that the author would endanger
her life or be exposed to the risk of torture or cruel, inhuman or degrading treatment or
punishment upon her return to China, the State party refers to the decisions of the Refugee
Appeals Board of 15 August 2012 and 16 November 2012. The State party also observes
that, according to the author’s submissions, it is presupposed in the Board’s decision of 15
August 2012 that she must conceal her religious identity in order to avoid further
persecution if she returns to China. However, that is not the case. As appears from its
decision of 16 November 2012, the Board emphasized the author’s own statements about
her affiliation with Falun Gong, including particularly her statements to the Danish
Immigration Service on 29 March 2012 and at the Board hearing on 15 August 2012 (see,
para. 4.4 above). At no time during the examination of her application for asylum did the
author state that she had had to conceal or suppress her religious persuasion since 2007 out
of fear of further persecution or outrages, or that she adhered to Falun Gong as a religion at
the present time. The State party also observes that the author stated during the asylum
proceedings that she had become interested in Christianity during her stay in Denmark and
was considering being baptized. Accordingly, there are no specific grounds for assuming
that, in view of her personal situation, the author can reasonably be expected to perform
religious acts that will place her at risk of becoming subjected to persecution or outrages
justifying asylum upon her return to her country of origin.
4.11 The State party further notes that, in its decision of 15 August 2012, the Refugee
Appeals Board considered whether the outrages to which the author had been subjected
from 1999 to 2007 would afford grounds for asylum under section 7 of the Aliens Act at the
present time. The Board found no basis for such a conclusion. Similarly, it found no other
facts that might give rise to persecution or outrages upon her return to China, as it was
unable to accept the author’s description of the sequence of events leading up to her
departure in 2010 (see, para. 4.2 above).
4.12 Concerning the reference made by the author’s counsel to the preliminary ruling of
the European Court of Justice in the joined cases C-71/11 and C-99/11, Federal Republic of
Germany v. Y and Z, the State party notes that the European Court of Justice established
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