TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Knowing that the applicant's conversion was not disputed and given the objective evidence about the risks faced by converts in Iran, Article 3 required the Migration Court not only to rigorously assess the risks thereby faced by the applicant before deciding to send him to Iran, but also to state a conclusion and give reasons on the point, especially since they'd already found him to be credible.
AP1 (Applicant): Instead, the Migration Court left the point unexamined and undecided.
AP1 (Applicant): It's entirely possible that if the Migration Court had expressed a view on the risk posed by his conversion, it would have found it unsafe to return the applicant to Iran.
AP1 (Applicant): These procedural failings were compounded, we would say, by the response of the Swedish state when the applicant, learning that his open participation in an initiation ceremony in a new congregation had been broadcast over the internet, indisputably did ask the Swedish authorities to assess the risks he would face as a result of his conversion, and to stress that's something which the applicant did even before his deportation order was finally upheld by the national courts, as our Appendix 25 makes clear.
AP1 (Applicant): In particular, the refusal of a fresh examination thereafter on the grounds that the circumstances raised were not new, apart from being factually inaccurate, is inconsistent with the position hitherto reached by the national courts that religion had not been invoked and in any event was not examined.
AP1 (Applicant): As the minority of the fifth section of this court put it in its dissent, Sweden cannot have it both ways.
AP1 (Applicant): So we submit there have been numerous procedural failings at the national level, and in our submission, any or all of them are sufficient in themselves to violate Article 3 in its procedural aspect.
AP1 (Applicant): The second question, regardless of the adequacy of the national proceedings, is whether the applicant's removal would in fact violate Article 3 now.
AP1 (Applicant): The test, of course, is whether there are substantial grounds for believing there is a real risk that if returned to Iran, he would be subjected to inhuman or degrading treatment.
AP1 (Applicant): We say that on the basis of a full ex-nunc assessment, taking account of country's conditions and of this applicant's personal circumstances, there is no doubt that the applicant's removal to Iran would violate Article 3.
AP1 (Applicant): One issue has assumed central importance in the written arguments before the Grand Chamber.
AP1 (Applicant): Is it consistent with the convention to expect the applicant to avoid risks of ill treatment that would otherwise arise by suppressing or limiting the manifestation of his faith on return?
AP1 (Applicant): In fact, there is broad agreement on the basic answer to this question between the applicant, the government, and the intervening parties, including the UN High Commissioner for Refugees.
AP1 (Applicant): The government accepts in its written case the principle recognized by the Court of Justice of the EU in its judgment last year in the YNZ case that where it is established that upon his return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status.
AP1 (Applicant): The fact that he could avoid that risk by abstaining from certain religious practices is, in principle, irrelevant.
AP1 (Applicant): For the avoidance of any doubt, there are three reasons why we submit that must be the correct analysis under Article 3 as well.
AP1 (Applicant): First, we say that it is offensive to the spirit of the convention to require applicants to suppress their fundamental right to freely manifest their religion as they choose.
AP1 (Applicant): The rationale of the convention is that people should be able to live freely without fearing that they may suffer execution or torture, inhuman or degrading treatment or punishment because they're Christian, or indeed for any other reason.
AP1 (Applicant): To expect anything else of the applicant involves surrendering his right to live freely and openly in society as who he is in terms of his religion, including not only his right to profess the Christian faith, but also his right not to profess the Islamic faith into which he was born, but which he has actively rejected.
AP1 (Applicant): Second, we say that to assume that applicants can avoid risk by being discreet would arbitrarily limit the rigorous factual assessment of risk that Article 3 requires.
AP1 (Applicant): This is because it would exclude an examination of the potential risk that even private manifestations of faith may be discovered.
AP1 (Applicant): Discovery may readily happen by chance, for example, where a visitor happens to discover a Bible or a crucifix in the applicant's home, but the risk that private manifestations of faith will be discovered is all the greater in a country like Iran, where there is cogent evidence of state surveillance and of the use of informants.
AP1 (Applicant): The convention cannot expect the applicant to live in fear every time there is a knock on his door that this may be the day his secret is discovered.
AP1 (Applicant): Finally, we submit that expecting the applicant to avoid risk by suppressing outward evidence of his convictions requires him not only to lie whenever he's asked about his beliefs or practices, but also to lie convincingly.
AP1 (Applicant): This involves the court and the national authorities in an impossible counterfactual exercise, just as importantly, to require an individual to lie in order to protect himself or herself is fundamentally offensive to the spirit of the convention.
AP1 (Applicant): The situation will materialize every time the applicant is asked about something relevant to his faith, whether it's under questioning by border officials on return or when his neighbor asks him why he has never attended the local mosque since moving into the area.
AP1 (Applicant): In reality, it's never simply going to be a question of expecting the applicant to abstain from exercising a fundamental right.
AP1 (Applicant): It's also a question of expecting him to take active measures constantly and quite possibly for the rest of his life to conceal his past and his true beliefs, to cover his tracks, to construct and live a convincing lie.
AP1 (Applicant): That's an impossible burden.
AP1 (Applicant): In our submission, the focus of the court's inquiry should be this.
AP1 (Applicant): Assuming that the applicant tells the truth on return, assuming that he manifests his beliefs and convictions and exercises his fundamental rights as he would in a free country, and rigorously scrutinizing the risk that the Iranian authorities may discover the applicant's true beliefs and practices even when he manifests them privately, what specific risks would this particular applicant face in Iran?
AP1 (Applicant): In our written case, we've identified not only the specific factors that place this particular applicant at a real risk of ill treatment if returned to Iran, but also the occasions on which such risk would materialize.
AP1 (Applicant): We say that there's already a real risk that the Iranian authorities are aware of these proceedings and that the applicant is identifiable.
AP1 (Applicant): We say that there is already a real risk that the Iranian authorities are aware of his activity in Sweden.
AP1 (Applicant): As the Migration Board puts it in the concluding paragraph of its own legal position statement on risk assessments for individuals belonging to minorities and other groups in Iran, reference number RCI 16 of 2012, the Iranian authorities are assessed as investing remarkably large resources in monitoring and mapping out the conduct of Iranian nationals abroad.
AP1 (Applicant): In fact, the country distinguishes itself as one of the countries that goes furthest in this regard.
AP1 (Applicant): This should be a starting point for any assessment.
AP1 (Applicant): What's more, there's clearly a real risk that this particular applicant will be interrogated by state officials on return to the airport in Iran.
AP1 (Applicant): If nothing else, this is because of his long absence from Iran, as the government accepts in paragraph 52 of its written observations.
AP1 (Applicant): But the risk is heightened further still by the fact that he left Iran illegally, by his previous detention and ill treatment, by the terms on which he was released from detention by the Revolutionary Court, and by the fact that he then failed to surrender to a summons.
AP1 (Applicant): When questioned, he cannot be expected to lie about his convictions, religious or political, or about his past.
AP1 (Applicant): If he gets through the airport unscathed, the evidence before the Grand Chamber is that the applicant will try to make contact with other Christians, with whom he will engage in a critical discussion, not only of Christianity, but also of Islam, of its imams and Mohammed.
AP1 (Applicant): He may not discuss the nature of his relationship with God publicly, and he may find it difficult to disclose his faith to his family and people from his past.
AP1 (Applicant): But he can be expected to be open about the fact of his faith with others, as he would with everyone in a free society.
AP1 (Applicant): He will join a home church and participate in services.
AP1 (Applicant): He will instruct others in Bible classes.
AP1 (Applicant): He will promote and disseminate Farsi-language Christian literature.
AP1 (Applicant): Given the extent of statal infiltration and surveillance of Christian communities and communications, there is clearly a real risk that this applicant will be identified to or by the Iranian authorities as a Christian convert with strong views, views likely to be considered inflammatory, not only about Christianity, but also about Iranian state-sanctioned Islam and the figures and principles it reveres.
AP1 (Applicant): All of these factors, in turn, entail a real risk, at the very least, that he will be arrested and detained and ill-treated during detention.
AP1 (Applicant): What is the government's answer to these concerns?
AP1 (Applicant): As far as we can see, the government's written defense now comes down to two grounds.
AP1 (Applicant): First, despite our express point to the contrary in our reference request, the government wrongly assumes that the applicant has abandoned all claims that he would face risk as a result of his previous history in Iran.
AP1 (Applicant): They've continued to ignore the potential risks arising from his previous ill-treatment at the hand of the authorities.
AP1 (Applicant): Second, the sole basis on which the government now denies that the applicant will face a risk as a result of his conversion is to deny, as we understand it, that he's a genuine convert at all.
AP1 (Applicant): It's nothing short of extraordinary that the genuineness of the applicant's belief should be actively denied for the first time now in writing before the Grand Chamber by a legal representative who has apparently never met or asked to meet the applicant after the Migration Board confirmed in the national proceedings that it's not disputed that he had become a Christian and after his conversion was accepted before the Chamber.
AP1 (Applicant): It also flies in the face of the state's duty of neutrality and impartiality, we say, as explained at paragraph 55 of the Grand Chamber's judgment this year in SAS against France.
AP1 (Applicant): The government's further claim at paragraph 53 of its observations that the applicant has not substantiated his identity is unfathomable.
AP1 (Applicant): The national authorities and courts have consistently held that the applicant has established his identity to the very high standard of proof they required.
AP1 (Applicant): In conclusion, therefore, in accordance with our written and oral submissions, we respectfully invite the court to declare the application admissible and to conclude that due to the failings in the national proceedings, Sweden has violated articles two and three in their procedural aspect.
AP1 (Applicant): What's more, there's a real risk that this applicant, like so many other Christian converts or others considered to be political or religious dissidents, will be subjected to inhuman or degrading treatment if returned to Iran.
AP1 (Applicant): At the worst, he may be sentenced to death, as the Iranian national Mr. Soheil Arabi was
AP1 (Applicant): in August this year for supposedly insulting the prophet Muhammad in a series of Facebook posts.
AP1 (Applicant): The death sentence may even be carried out, as in the case of Mr. Mohsen Amir Aslani,
AP1 (Applicant): who was executed in September after eight years in prison.
AP1 (Applicant): Mr. Amir Aslani was an Iranian psychologist
AP1 (Applicant): with an interest in theology who gave religious classes, looking at different interpretations of the Quran.
AP1 (Applicant): Reports indicate that his crime was to tell one of his classes that Jonah could not have emerged from the belly of a whale.
AP1 (Applicant): We respectfully invite the court to rule that the applicant's removal to Iran would violate Articles 2 and 3 of the Convention.
Dean Spielmann (JudgeP): Thank you, Mr Loveday. I call Mr Rönquist.
GR1 (Government): the case before the grand chamber concerns the issue of whether the removal of the applicant to Iran would violate Articles 2 and 3 of the Convention on the grounds of a risk arising in particular with regard to his conversion to Christianity, which took place in Sweden.
GR1 (Government): By way of introduction, the government would like to stress that as far as the facts of the present case are concerned, I will not go into them in detail as they are summarized in the court's judgment.
GR1 (Government): The government's written memorial, submitted on 14 August this year, gives a full account of how the government views this case.
GR1 (Government): I, therefore, refer to the government's memorial in extenso.
GR1 (Government): The third-party interveners before the grand chamber, the European Center of Law and Justice and Alliance Defending Freedom, have given us an update on the situation for Christian converts in Iran.
GR1 (Government): The government concurs with the country of origin information referred to by the third-party interveners regarding the situation for Christians and Christian converts in Iran.
GR1 (Government): The government also concurs with the conclusion therein that those particularly at risk are converts from Islam who seek to worship in community with others or speak freely about their faith and publicly manifest their new Christian beliefs.
GR1 (Government): Accordingly, it is the government's opinion that a convert from Islam to Christianity who has attracted the attention of the Iranian authorities could risk treatment in violation of Article 3 of the Convention.
GR1 (Government): In the government's pleadings here today, I will try to demonstrate that the expulsion of the applicant would not constitute a breach of Articles 2 or 3 of the Convention.
GR1 (Government): Before moving on to the merits in the case at hand, the government would like to recall that the task of this court should not be to act as an immigration appeals tribunal or a court of fourth instance, or in this case, of fifth instance.
GR1 (Government): In this regard, the government would like to recall the subsidiary character of the Convention mechanism, which constitutes a fundamental principle which both the court and the state parties must take into account.
GR1 (Government): The government would like to invite the court, when examining the case at hand, to assess and take full account of the effectiveness of the domestic procedure and avoid making a reassessment unless the assessment of the domestic authorities and courts is considered to have been inadequate or the outcome of the proceedings arbitrary.
GR1 (Government): Mr. President, firstly, I will address the issue
GR1 (Government): of whether the domestic authorities and courts carried out a proper assessment with regard to the applicant's conversion to Christianity.
GR1 (Government): Secondly, I will expand on the risks of treatment in breach of Article 2 and 3 that the applicant has claimed he could be subjected to on return to Iran.
GR1 (Government): And thirdly, I will elaborate on the rights of religion enshrined in Article 9 of the Convention and its applicability in the case at hand.
GR1 (Government): Firstly, as regards the assessment made by the Swedish authorities and courts in the case at hand, it is relevant to note the following.
GR1 (Government): It follows from the case files that the applicant did not have any interest in Christianity before he arrived in Sweden in November 2009.
GR1 (Government): In the interview with the Swedish Migration Board in March 2010, the applicant stated that he did not regard Christianity as a religion and that he did not want to include his conversion in his asylum claim because it was of a private nature.
GR1 (Government): The Swedish Migration Board conducted three oral examinations with the applicant, and the Migration Court held one oral hearing.
GR1 (Government): On each of these occasions, the applicant had the opportunity to invoke his fear of persecution or serious harm upon his return to Iran due to his conversion.
GR1 (Government): He was also asked on several occasions if he did not wish to invoke his conversion as grounds for asylum and had the opportunity to consult privately with his legal counsel on this matter.
GR1 (Government): In appendix 21 of the submission of the applicant containing his witness statement, he states that during the asylum interview before the Migration Board, he was encouraged by his legal counsel to raise the fact that he had converted.
GR1 (Government): His counsel also told him that Christian converts may encounter problems upon return to Iran.
GR1 (Government): In the witness statement, the applicant also disclosed that the Migration Court asked about his religion and encouraged him to speak about it during the oral hearing.
GR1 (Government): The applicant, however, chose not to invoke his conversion as grounds for asylum until three weeks after his expulsion decision became final and non-appealable.
GR1 (Government): This despite the fact that he already, during the proceedings before the Migration Board, learned that returning to Iran as a convert could cause him problems.
GR1 (Government): Throughout the domestic migration proceedings, the applicant was assisted by legal counsel, one counsel before the Migration Board and another one before the Migration Courts appointed by the Swedish state.
GR1 (Government): Both counsels have Master of Law degrees and are employed by the same law firm.
GR1 (Government): The law firm has a high level of legal expertise in the area of migration law and has brought actions on behalf of individuals both before this court and before the UN Committee Against Torture.
GR1 (Government): During the proceedings of the applicant's case before the Migration Board, his public counsel worked for 12 hours on its case and before the Migration Court, 10 hours' work were devoted to his case.
GR1 (Government): Under these circumstances, the government argues that there were no shortcomings in the legal support provided to the applicant during the national asylum process.
GR1 (Government): In addition, it is also relevant to note that an interpreter was present during all the interviews with the applicant and that no objections were made concerning the interpretation.
GR1 (Government): Mr. President, the government would hereby like
GR1 (Government): to give a brief account of the Swedish asylum procedure.
GR1 (Government): In an asylum case, the Swedish Migration Board, the first instance in the migration process, has to take account of all circumstances in support of the applicant's case, even such claims that are not expressly invoked by the applicant.
GR1 (Government): This obligation to assess a case on its own motion applies even after an expulsion order has become final.
GR1 (Government): This means that the expulsion order may not be issued or enforced if there are reasonable grounds to believe that, if expelled, an asylum seeker risks being sentenced to death or being subjected to corporate punishment, torture, or other inhuman or degrading treatment or punishment.
GR1 (Government): In its decision dated 29 April 2010, the Migration Board found that the applicant, notwithstanding the submitted certificate, had not substantiated that he had converted to Christianity or been baptized.
GR1 (Government): In this regard, the government argues that the Migration Board, when assessing the applicant's asylum case, did examine whether there were reasonable grounds to believe that the applicant would be subjected to treatment in breach of Article 3 of the Convention, this despite the fact that the applicant chose not to invoke his conversion.
GR1 (Government): Now turning to the oral proceedings before the Migration Court on 16 February 2011, the applicant then stated explicitly that he did not wish to invoke his conversion as grounds for asylum since he felt that this was a private matter.
GR1 (Government): He did, however, mention that his conversion would create problems for him in Iran.
GR1 (Government): In an overall assessment in his judgment, the Migration Court found that the applicant had not plausibly demonstrated that he risked persecution upon his return to Iran and that he, therefore, was not in need of protection.
GR1 (Government): Under Section 8 of the Swedish Administrative Court Procedure Act, the Migration Court is responsible for carrying out an assessment of all relevant facts as required by the nature of the case before it.
GR1 (Government): The asylum procedure in the Migration Court is a two-party procedure in which the Migration Board litigates against an applicant represented by a legal counsel.
GR1 (Government): The applicant bears the initial burden of sustaining the circumstances of his claim.
GR1 (Government): As noted by the third party intervener, UNHCR, the Migration Court of Appeal has, in a precedent-setting case, held that the unique character of an asylum case affects the scope of the Migration Court's obligation to carry out an assessment.
GR1 (Government): The Migration Courts, therefore, have an investigative responsibility of their own in such cases.
GR1 (Government): This is due to the fact that the outcome of these cases can have a significant impact on the life of an individual asylum seeker, and that wrongful expulsion can lead to an asylum seeker being exposed to human rights violations.
GR1 (Government): Mr. President, turning to the case at hand,
GR1 (Government): during the oral proceedings before the Migration Court, the applicant explicitly stated that he did not want to invoke his conversion to Christianity as grounds for asylum.
GR1 (Government): The applicant only vaguely implied that this might cause him problems upon his return to Iran.
GR1 (Government): The Migration Court thus found, in an overall assessment, that the applicant had not plausibly demonstrated that he was in need of protection.
GR1 (Government): After the decision to expel the applicant became final, the applicant then claimed that his new faith constituted a lasting impediment to the enforcement of his expulsion order and submitted a certificate from his Christian congregation in Sweden.
GR1 (Government): In its decision of 13 September 2011, the Migration Board noted that it was remarkable that the applicant chose to invoke this circumstance at this stage instead of accounting for it during the oral examination before the Migration Court.
GR1 (Government): The Board nevertheless concluded that there were no new circumstances that could be assumed to constitute a lasting impediment to the enforcement of the decision to expel the applicant.