CASE OF F.G. v. SWEDEN
Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran);Violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano
10. The applicant was born in 1962 and lives in Sweden. 11. He entered Sweden on 16 November 2009 and applied for political asylum. 12. On 19 February 2010, counsel appointed the applicant made written submissions to the Migration Board (Migrationsverket) in which he developed the grounds for the applicant’s request for political asylum. 13. On 24 March 2010 the Migration Board held an oral interview with the applicant in the presence of his counsel and an interpreter. The applicant handed over a declaration of 15 March 2010 from a pastor in Sweden certifying that the applicant had been a member of his congregation since December 2009 and had been baptised. The Migration Board official therefore started the interview by asking about that matter. The applicant replied that it was a private matter “in [his] heart”, adding: “It has nothing to do with this but if you want to ask questions you may. All problems in my home country are caused by Islam entering Iran ...”. The Migration Board official explained that the reason why he was asking questions about it was that he had interpreted the certificate as though the applicant had relied on his conversion as a ground for asylum. The applicant stated: “no, it is not something I want to rely on. It is something private”. The Migration Board official then suggested a break in the interview in order for the applicant and his counsel to confer. After a ten-minute break, counsel stated: “the applicant wants to underline that he has not changed religion in order to enhance his chances of getting a residence permit but out of personal conviction”. When asked when he had converted, the applicant replied that this had happened after he had arrived in the Swedish town of X, where there were not many Iranians. He had got to know a person who went to church four times a week. This person knew that the applicant hated Islam. The applicant continued: “I do not regard Christianity as a religion”. When asked why that was so, the applicant replied: “if regarded as a religion it would be like Islam, but Christianity is about a kind of love you have for God”. He explained that he had been going to the congregation’s gatherings two to four times per week and that he read the Bible. The applicant gave examples of miracles and prophecies from the Bible which had attracted him to Christianity. The Migration Board official asked why, if the applicant did not wish to rely on his conversion as a ground for asylum, he had nevertheless handed in the certificate from the pastor, to which the applicant replied: “I don’t know. I never asked for it and I had not even considered handing it in, but you wanted it. They gave all converts a certificate like that”. 14. The rest of the interview dealt with the applicant’s political past. The applicant explained that in Iran he had worked with persons connected to different universities who were known to oppose the regime. He had mainly worked on creating and publishing web pages. He and one of the other persons had been arrested in April 2007. He had been released after 24 hours and then hospitalised for ten days due to high blood pressure. 15. Before the elections on 12 June 2009, the applicant had worked with the Green Movement, who had supported Mousavi for the presidential position, by spreading their message via the Internet. The day before the elections, he and his friends had been arrested, questioned and detained in the polling station overnight. 16. After the elections, the applicant had participated in demonstrations and other activities. He had been arrested once again in September 2009 and imprisoned for twenty days. He had been ill-treated in prison. In October 2009 he had been taken before the Revolutionary Court, which had released him after a day on condition that he cooperate with the authorities and spy on his friends. He had agreed to the demands and given his business premises as a guarantee. He had also assured them that he would not participate in any demonstrations and that he would respond to their summons. Following his release in a park, he had found that his business premises had been searched. He had kept politically sensitive material there, which the authorities must have noticed, and his passport and other documents were missing. 17. Subsequently, the applicant was summoned to appear on 2 November 2009 before the Revolutionary Court. He had contacted a friend who, in turn, had obtained the help of a smuggler to enable him to leave the country. The applicant submitted a summons from the Revolutionary Court dated 21 October 2009 stating that he should present himself at Evin prison in Teheran on 2 November 2009. 18. The interview before the Migration Board lasted approximately two hours and the record was subsequently sent to the applicant and his counsel for comment. Counsel commented that the applicant had not read the certificate from the congregation’s pastor before the interview as it had not been translated and that the applicant intended to submit the formal baptism certificate. 19. On 29 April 2010 the Migration Board rejected the applicant’s request for asylum. By way of introduction, it stated that while the applicant had not proven his identity or citizenship he had established the probability thereof. 20. As regards the request for political asylum, the Migration Board held that participation in demonstrations or affiliation with the Green Movement could not, of itself, give rise to a risk of persecution, ill-treatment or punishment on his return to Iran. The Migration Board noted that the applicant had changed his story in some parts during the proceedings, and in particular, he had changed his statements concerning the number of times he had been arrested. Furthermore, he had not been able to name the park where he had been released in October 2009. Thus, the Migration Board found reason to question whether he had been arrested at all. The Migration Board further considered that the applicant’s political activities had been limited. After the questioning in 2007 and until the elections in 2009, he had been able to continue working with the web pages that contained the critical material, even though, according to the applicant, already at that time the authorities had been aware of his activities. For these reasons, the Migration Board found that the applicant could not have been of interest to the authorities on account of his activities or the material he had in his possession. 21. As to the applicant’s conversion to Christianity, the Migration Board noted that the conversion and baptism had not taken place in the Church of Sweden and that the applicant had not handed in any proof of his baptism. The certificate from the congregation’s pastor could be regarded only as a plea to the Migration Board that the applicant should be granted asylum. The applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his new faith was a private matter. To pursue his faith in private was not found to be a plausible reason for believing that he would risk persecution upon return. In conclusion, the Migration Board found that the applicant had not shown that he was in need of protection in Sweden. 22. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and relying on both political and religious grounds for asylum. As regards the latter he handed in a baptism certificate of 31 January 2010. He reacted against the decision by the Migration Board, which in his view implied that a conversion within a “free church” was of less relevance than if it had been within the Church of Sweden. He explained that the reason why he had not initially wished to rely on his conversion was that he did not want to trivialise the seriousness of his beliefs. 23. On 16 February 2011 the Migration Court held an oral hearing in the presence of the applicant, his counsel, an interpreter and a representative of the Migration Board. 24. The Migration Board did not question the fact that the applicant, at the time, professed the Christian faith, but found that this, by itself, was not enough to consider him in need of protection. It referred to the British Home Office’s operational guidance note of January 2009. 25. The applicant stated that he did not wish to rely on his conversion as a reason for asylum but considered it something personal. He added that “it would, however, obviously cause [him] problems upon return”. 26. In respect of his political past he explained, inter alia, that he had had contact with the student movement and quite a lot of students and had helped them with their home pages. His computer had been taken from his business premises while he was in prison. Material that was critical of the regime was stored on his computer. While he had not personally criticised the regime, or President Ahmadinejad, or the highest leaders, the applicant had visited some websites and had received cartoons via email. Therefore, in his view, there was enough evidence to prove that he was an opponent of the system. It was much the same as the material he had had on his computer in 2007. 27. The summons to appear before the Revolutionary Court on 2 November 2009 was also submitted to the Migration Court. The applicant explained that the summons had been served at his home and that his sister had brought it to him. He had left the summons with a friend when he left Iran. Subsequently, the said friend had sent it to another friend, who was going to Ukraine, and who had made sure that the summons was sent to the applicant in Sweden. He had not been summoned again and his family had not been targeted. Something might have happened, though, that his family did not wish to burden him with. 28. On 9 March 2011 the Migration Court rejected the appeal. It observed that the applicant was no longer relying on his religious views as a ground for persecution and it did not refer further to this issue in its conclusions. 29. The Migration Court found that the applicant’s story in support of his request for political asylum had been coherent and trustworthy on the most essential points. It found that the uncertainties that had been pointed out by the Migration Board had been satisfactorily explained. However, as regards the summons to appear before the Revolutionary Court, the Migration Court found, regardless of the authenticity of the document, that it could not by itself substantiate a need for protection. The Migration Court pointed out in this respect that the document was merely a summons and that no reason had been given as to why the applicant should present himself at Evin prison. Moreover, the information concerning the applicant’s political activities had generally been vague and lacking in detail. The applicant had only stated that he had participated in the campaign for the opposition before the elections in 2009 by joining demonstrations and having contact with the student movement and students in order to help them with their web pages. Furthermore, the applicant had stated that the material he had had in his possession when he was questioned in 2007 had not differed from the material he had in 2009. These circumstances, together with the fact that he had not been summoned again to appear before the Revolutionary Court after November 2009 and that his family had not been targeted, made the Migration Court doubt that his political activities had been of such a nature and extent as to have resulted in the consequences alleged. The Migration Court found that the applicant had exaggerated the importance of his political activities and their consequences and therefore also the authorities’ interest in him. For these reasons, it considered that the applicant had not made out that the Iranian authorities had a special interest in him and that therefore he was in need of protection. 30. On 30 March and 19 April 2011 the applicant requested leave to appeal to the Migration Court of Appeal (Migrationsöverdomstolen). He maintained his need for political asylum. He also alleged that before the Migration Court he had relied on his conversion. He submitted that the latter issue had been sensitive for him, that he had considered it a private matter and that had not wanted to tarnish the seriousness of his belief. This was the reason why he, in response to a direct question by the Migration Court, had stated that he was no longer relying on his conversion as a ground for asylum. After the oral hearing before the Migration Court he had become a member of another Christian congregation and had taken part in an initiation ceremony broadcast on the Internet. His fear that his conversion had become known to the Iranian authorities had therefore increased. He enclosed a letter of 13 April 2011 from his new congregation which supported his explanation. In particular, it stated that the applicant had converted shortly after his arrival in Sweden, that he had shown with honest intent and interest that he was willing to learn more about Christianity, and that he took part in church services, prayer meetings and social activities. It also stated that he became a member of the congregation in February 2011 and that his Christian beliefs were no longer private as the services he attended were broadcast on the Internet. 31. On 8 June 2011 the Migration Court of Appeal refused the applicant’s request for leave to appeal. The removal order thus became enforceable. 32. On 6 July 2011 the applicant requested the Migration Board to stay the enforcement of his expulsion and to reconsider its previous decision in the light of new circumstances. He stated, inter alia, that the act of conversion from Islam to another religion was a taboo and punishable by death in Iran. The applicant submitted the above-mentioned letter of 13 April 2011 from his new congregation. 33. On 13 September 2011 the Migration Board refused to re-examine the applicant’s request for asylum based on his conversion. The Migration Board noted that in the original asylum proceedings the applicant had stated that he had been baptised and had converted to Christianity. He had also stated that his conversion was a personal matter which he did not wish to rely on as a ground for asylum. The Migration Board found it noteworthy that the applicant now raised the question of conversion, when he had been given the chance to elaborate on it during the oral hearing before the Migration Court but had declined to do so. It thus concluded that the applicant’s conversion could not be regarded as a new circumstance, which was a precondition for the Migration Board to re-examine the request. 34. The applicant appealed against the decision to the Migration Court, maintaining his claims. He submitted that since he had not previously relied on his conversion, it should be regarded as a new circumstance. 35. On 6 October 2011 the Migration Court rejected the appeal. It observed that the authorities had already been aware of the applicant’s conversion in the original proceeding leading to the decision to expel him. Therefore, the conversion could not be considered as a “new circumstance”. The fact that the applicant had previously chosen not to rely on his conversion as a ground for asylum did not change the court’s assessment in this regard. 36. The applicant’s request for leave to appeal was refused by the Migration Court of Appeal on 22 November 2011. 37. Since under Chapter 12, section 22 of the Aliens Act, the validity of a deportation order expires four years after the date on which it acquired legal force, in the present case the deportation at issue expired on 8 June 2015.