Message: M.K.M. v. Australia. Message No. 681/2015. The decision was taken by the Committee against Torture (hereinafter referred to as the Committee) May 10, 2017
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the message: the threat of the applicant's expulsion to Afghanistan.
Substantive issue: the threat of torture in case of expulsion to the country of origin (non-refoulement).
Legal positions of the Committee: objective... The assessment of whether there are serious grounds to believe that after the applicant's return to Afghanistan, he will be personally at risk of being subjected to torture is to determine whether the person personally would be at a foreseeable and real risk of being subjected to torture in the country to which he is to be returned (See communication No. 470/2011, X. v. Switzerland, Decision adopted November 24, 2014). It follows from this that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a given country is not in itself sufficient reason to conclude that a particular person would be in danger of being subjected to torture upon return to that country. Additional grounds must be given to confirm that such a danger would threaten the person personally. The opposite is also true: the absence of a consistent practice of egregious violations of human rights does not mean that a person in his/her specific circumstances is not in danger of being subjected to torture (paragraph 8.3 of the Decision) (See communication No. 490/2012, E.K.U. v. Finland, Decision of May 4, 2015, paragraph 9.3.).
The Committee... Refers to its general comment No. 1 and confirms that the existence of a risk of torture should be assessed on grounds that go beyond mere speculative assumptions or suspicions. Although the risk should not be proved with a high degree of probability, the burden of proof usually lies with the applicant, who must state in a reasoned manner that he is in "foreseeable, real and personal danger" (See communications No. 203/2002, A.R. v. the Netherlands, Decision adopted on November 14, 2003, paragraph 7.3; No. 258/2004, Dadar v. Canada, Decision adopted on November 23, 2005, paragraph 8.4; No. 343/2008, Kalonzo v. Canada, Decision adopted on May 18, 2012, paragraph 9.3; No. 458/2011, X. v. Denmark, Decision adopted on November 28, 2014, paragraph 9.3; and No. 520/2012, V.G.D. v. Canada, Decision adopted on November 26, 2014, paragraph 8.4.). The Committee attaches great importance to the conclusions on the factual side of the case prepared by the authorities of the State party concerned, but at the same time it does not consider itself bound by such conclusions and is entitled, as provided for in article 22, paragraph 4, of the Convention, to freely assess the facts, taking into account all the circumstances in each individual case (paragraph 8.4 of the Decision) (See. paragraph 9, and communications No. 356/2008, N.S. v. Switzerland, Decision adopted on May 6, 2010, paragraph 7.3; No. 375/2009, Etc. v. Switzerland, Decision adopted on May 26, 2011, paragraph 8.7; No. 387/2009, Division v. Australia, Decision adopted on November 14, 2013, paragraph 10.4; and No. 466/2011, Alp v. Denmark, Decision adopted on May 14, 2014, paragraph 8.3.).
The Committee... Notes that the State party has pointed out contradictions and inconsistencies in the complainant's allegations; however, the Committee considers that it is rare to expect complete accuracy of information provided by victims of torture (See communication No. 21/1995, Alan v. Switzerland, Decision adopted on 8 May 1996, paragraph 11.3.), whose mental disorders should be properly assessed take into account (paragraph 8.6 of the Decision).
The Committee recalls that in its decisions (See communications No. 379/2009, Bakatu-Bia v. Sweden, Decision of 3 June 2011, paragraph 10.6; No. 322/2007, Ndjamba and Balikosa v. Sweden, Decision of 14 May 2010, paragraph 9.5.) and in its general Comment No. 2 (2008) on the implementation of article 2, it has already considered the risk of torture by non-State actors and the failure of the State party to take measures to stop acts unacceptable under the Convention, for which it may be responsible (See Division v. Australia, paragraph 10.9.). In this regard, the Committee takes note of the information contained in available reports on torture and ill-treatment, arbitrary detention and violations of the right to a fair trial in Afghanistan, as well as reports of ill-treatment of persons who sought asylum and did not receive it in situations similar to the author's (paragraph 8.7 Solutions).
The Committee recalls that, although it is up to the applicant to substantiate prima facie (In the first place.) This does not exempt the State party from making significant efforts to determine whether there are grounds to believe that the applicant would be in danger of being subjected to torture if returned to the country concerned (paragraph 8.8 of the Decision) (See communication No. 580/2014, F.K. v. Denmark, Decision adopted on 23 November 2015, item 7.6.).
The Committee, referring to its legal practice (See Communication No. 338/2008, Mondal v. Sweden, Decision adopted on May 23, 2011, paragraph 7.4.), considers that the possibility of finding another place of residence or resettlement is not a reliable and long-term alternative, since lack of protection is a common phenomenon and this person will be at risk of further persecution or serious harm, especially in a situation where in which the persecution of the civilian population by anti-Government elements is often arbitrary in the applicant's country of origin (paragraph 8.9 of the Decision).
The Committee's assessment of the factual circumstances of the case: The Committee notes the complainant's claim that in 2008 he was detained and tortured by the Taliban for about five months because of his ethnic origin and religion, as the Taliban accused him of working for a foreign Government and suspected him of involvement in the preparation of an act of terrorist bombing with the participation of suicide bombers. The Committee also notes the complainant's claim that he witnessed the beheading of his father and another prisoner, which caused him serious psychological stress; that the Afghan authorities would not be willing or able to protect him from persecution and torture if he returned to Afghanistan, since the Taliban had infiltrated all levels of government; and that after his arrival in Australia, health workers stated that he was in a state of anxiety, depression and post-traumatic stress disorder, which was allegedly further aggravated as a result of his prolonged detention in the State party as an illegal migrant. The Committee... Notes that there will be no facilities in Afghanistan for proper treatment of the applicant in accordance with his needs and that the author's mental health has deteriorated since 2012, mainly because he saw his father killed and was detained for a long time as an illegal migrant due to mistakes made during the first independent investigation consideration of his case on the merits. The Committee... Notes the author's statement that the State party's senior officials failed to consider whether his mental disorder could be cured in Afghanistan and whether the lack of adequate treatment would amount to cruel, inhuman or degrading treatment in his case. These allegations, which provided new circumstances in support of applications for additional protection after consideration of the merits of the case, are not disputed by the State party (paragraph 8.5 of the Decision).
The Committee... Takes note of the State party's contention that the complainant has not substantiated his claim that he would be in real and personal danger of being subjected to torture if he returned to Afghanistan, and that the general risk of violence is not sufficient reason to believe that this particular person would be in danger of being tortured if returned. Nevertheless, the Committee notes that the State party does not dispute the complainant's allegations regarding the danger of being subjected to torture or ill-treatment as a returned person who was denied asylum and the inability of the Government of Afghanistan to provide protection from torture. In addition, the Committee notes that the State party's Department of Immigration and Border Protection concluded that the complainant may well move to another area within Afghanistan, including Kabul, although the Department agreed that the author and his father were abducted by the Taliban and subjected to several months of torture they were tortured and that the author witnessed the beheading of his father and therefore fears returning to Afghanistan. The Committee also notes that the State party has pointed out contradictions and inconsistencies in the complainant's allegations; However, the Committee considers that it is rarely possible to expect complete accuracy of information provided by victims of torture (See communication No. 21/1995, Alan v. Switzerland, Decision adopted on 8 May 1996, paragraph 11.3.), whose mental disorders should be duly taken into account. Moreover, despite the conclusion that the applicant would not be denied medical care in Afghanistan, the State party acknowledged that the level of psychiatric care in Afghanistan was "comparatively low" (paragraph 8.6 of the Decision).
The Committee is aware of the human rights situation in Afghanistan and notes that the Australian authorities have taken this issue into account when assessing the risk the complainant may face if he returns to his country of origin. With regard to the complainant's claim regarding the danger he would be exposed to as a rejected asylum seeker who had been living in a Western country for several years, the Committee notes the absence of any arguments from the State party refuting this claim. The Committee further notes the complainant's claim that he was tortured by non-State actors and that the State party would not be able to protect him if he returned to Afghanistan (paragraph 8.7 of the Decision).
The Committee... Notes that the applicant's arguments and the evidence presented in support of them have been examined by the authorities of the State party... The Committee considers it indisputable that the complainant was detained and tortured by the Taliban and that he has a fragile state of health, as he was diagnosed with anxiety, depression and post-traumatic stress disorder related to the psychological shock he suffered in Afghanistan and allegedly further aggravated by his prolonged detention in the State- a participant as an illegal migrant, and that the risk of torture or significant harm cannot be excluded, since the State party recommended that he move to some other area of Afghanistan (paragraph 8.8 of the Decision).
The Committee considers that, although the State party has expressed concern about, for example, the credibility of the complainant's arguments regarding his fear of being subjected to torture or the threats to which he was subjected, it has reached a negative conclusion about the complainant's veracity without properly examining the fundamental aspect of the complainant's claim, namely whether his previous torture, compounded by his current mental disorder resulting from the torture and inhuman treatment he was subjected to in Afghanistan, represent his current risk profile as a result of the risk of serious and significant harm to him if he returns to Afghanistan. In this regard, the Committee considers that, by rejecting the applicant's application for asylum, without paying sufficient attention to the fact that the Afghan authorities are unable to protect the applicant from further persecution by the Taliban, the State party has not conducted a sufficient investigation into whether the applicant would be at risk of torture or ill-treatment if his return to Afghanistan. In this regard, the Committee, referring to its jurisprudence (See para. Communication No. 338/2008, Mondal v. Sweden, Decision adopted on May 23, 2011, paragraph 7.4.), considers that the possibility of finding another place of residence or resettlement is not a reliable and long-term alternative, since lack of protection is a common phenomenon and this person will be at risk of further persecution or serious harm, especially in a situation where in which the persecution of the civilian population by anti-Government elements is often arbitrary in the applicant's country of origin. The Committee also considers that the State party's authorities failed to adequately assess the complainant's mental state, the actual availability of adequate treatment facilities in Afghanistan and the potential impact of the complainant's forced return to his country of origin on his mental health. In this regard, the Committee considers that, in the circumstances, the applicant's expulsion to Afghanistan would constitute a violation of article 3 of the Convention (paragraph 8.9 of the Decision).
The Committee's conclusions: The State party is obliged, in accordance with article 3 of the Convention, to refrain from forcibly returning the applicant to Afghanistan or any other country where he is in real danger of being expelled or returned to Afghanistan (paragraph 9 of the Decision).