CASE OF A.A.M. v. SWEDEN
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq)
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano
7. The applicant was born in 1977 and originates from Mosul. 8. The applicant applied for asylum in Sweden on 24 November 2008. He stated in essence the following in support of his application. He is formally a Sunni Muslim, but does not practise and considers himself to be an atheist. He had a shop in Mosul where he had rented out computer games and game consoles. In early August 2008 he had employed a young woman who did not wear a veil. After a few days, on 7 August, two masked men claiming to be members of Tahtim al-Jihad, an Iraqi branch of al-Qaeda, had entered the shop. They had told him that hiring a woman without a veil was against Islam and had required that she leave her job immediately. The applicant had refused their demand and had stated that “if this is Islam, then I am not a Muslim”. The woman had quit her job the following day. Still, three days later the applicant had received a letter with a bullet, stating that he had to excuse himself before the emir within five days or else he would be considered to have left Islam and could be killed. The applicant had refused to apologise. Some days later he had received a death threat and had been shot at. Soon thereafter, his shop had been destroyed by a bomb. Through a friend, whose brother had worked for the police, the applicant had been informed that the police were looking for him because they believed that the applicant had destroyed the shop himself to cover up for hiding weapons for terrorists there. His parents’ neighbour had later told him that both the police and alQaeda had come to the parents’ apartment to look for him on several occasions. The applicant had then fled to Dahuk in the Kurdistan Region, as alQaeda was less dominant there. Nothing had happened to him in Dahuk. After a month there, he had left Iraq on 26 September 2008. The applicant claimed that he risked being sentenced to death if he returned to Iraq, since he had uttered an unacceptable religious opinion in front of local al-Qaeda representatives and since he was wanted by the police for alleged cooperation with terrorists. Both al-Qaeda and the police were allegedly searching for him all over Iraq. 9. On 29 July 2009 the Migration Board (Migrationsverket) rejected the application and ordered the applicant’s deportation to Iraq. The Board questioned the applicant’s allegations that al-Qaeda had been searching for him in his parent’s home and that he was sought by the police for having hidden weapons for terrorists in his shop, because he had submitted this information only very late in the proceedings. In any event, noting that the police accusations were false, the Board did not consider that the risk of being prosecuted could be characterised as persecution that would justify the grant of asylum. However, it accepted the applicant’s claim that his life had been threatened by al-Qaeda and that he would thus face a real risk of persecution upon return to Mosul. The Board went on to examine the possibility of internal flight and found that the applicant had not made it plausible that he was at risk in all parts of Iraq. He was not considered in need of protection in relation to areas of the country where al-Qaeda was not strong. The Board noted that, while al-Qaeda retained a strong presence in Mosul, the security situation in the Kurdistan Region was stable and displaced persons could gain entrance there without a sponsor. Having regard to the general situation and the applicant’s personal circumstances – including his gender, age, health, religion and ethnicity –, it further found that he could reasonably relocate to the Kurdistan Region, even if he would lack a social network there. That finding was supported by the fact that he had already stayed in Dahuk for a month without encountering any problems. 10. The applicant appealed, reiterating the claims he had made to the Migration Board. 11. On 2 December 2009 the Migration Court (Migrationsdomstolen) upheld the decision of the Board, agreeing generally with its conclusions. 12. In his appeal to the Migration Court of Appeal (Migrations-överdomstolen), the applicant submitted a copy of an Iraqi document, purporting to be a warrant for his arrest. 13. On 16 April 2010 the Migration Court of Appeal refused the applicant leave to appeal. 14. Subsequently, in May 2010, the applicant claimed that there were impediments to the enforcement of his deportation order. He added the following to his story. His family had previously collaborated with Saddam Hussein and the new al-Maliki government therefore considered them to be supporters of Saddam Hussein. Several of the applicant’s relatives had been arrested in recent months and were being kept in a secret prison run by the government. 15. On 16 June 2010 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. 16. On 11 August 2010 the Migration Court upheld the decision of the Board. It noted, inter alia, that the applicant’s allegation that he was wanted by the police had been examined earlier in the proceedings and that the arrest warrant presented later thus did not constitute a new fact which gave reason to grant him a new examination of his case. The applicant did not appeal against the Migration Court’s judgment. 17. In October 2010 the applicant lodged a further petition for reconsideration, claiming that new important facts had emerged in his case. The petition was rejected on 1 November 2010 by the Migration Board, which noted that the applicant had not presented anything concrete in support of it. No appeal was made against this decision. 18. Another petition for reconsideration was submitted later. The applicant now stated that he had been wrongly convicted of terrorism and sentenced in absentia to ten years’ imprisonment. He submitted two documents in Arabic, allegedly a copy of an arrest warrant and a copy of the judgment convicting him. 19. On 22 November 2010 the Migration Board rejected the petition, again finding that no new circumstances had been presented which justified that the case be reconsidered. It noted that the documents submitted were copies and of a very simple nature and that handwritten text had been added to the judgment. It thus considered that their value as evidence was very low. 20. On 21 December 2010 the Migration Court upheld the decision of the Board and on 21 January 2011 the Migration Court of Appeal refused leave to appeal. 21. The applicant submitted a fourth petition for reconsideration in February 2011. It was rejected by the Migration Board on 9 February 2011 and by the Migration Court on 15 February 2011. The applicant did not appeal against the Migration Court’s judgment. 22. A fifth petition was lodged by the applicant in October 2011. It was rejected by the Migration Board on an unknown date and by the Migration Board on 25 November 2011. On 16 December 2011 the Migration Court of Appeal refused the applicant leave to appeal.