THIRD SECTION

DECISION

Application no . 61402/15 M.H.A. against the Netherlands

The European Court of Human Rights (Third Section), sitting on 5 July 2016 as a Chamber composed of:

Luis López Guerra, President, Helena Jäderblom, Helen Keller, Johannes Silvis, Dmitry Dedov, Branko Lubarda, Pere Pastor Vilanova, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 13 December 2015 ,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr M.H.A., is an Afghan national who was born in 1994 and lives in Soesterberg. The duty judge decided that the applicant ’ s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Mr W. Boelens, a lawyer practising in Utrecht.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant was born in Uruzgan, Afghanistan, but lived in Kabul for three years prior to leaving the country. He is a Muslim of Hazara ethnicity. The applicant entered the Netherlands on 5 April 2011 after travelling through Pakistan, Iran, Greece, Italy and France.

4 . The applicant lodged his first asylum application in the Netherlands on 17 May 2011. He submitted, inter alia , that he had left Afghanistan as he had feared that he would face acts of revenge after being involved in an incident in his brother ’ s shop in Kabul, where he had, in self-defence, wounded a man who had later died. That asylum application was rejected, with a final decision being handed down on 23 October 2013 by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ).

1. Second set of asylum proceedings

5 . On 9 April 2013 the applicant was taken to immigration detention. After indicating that he wished to make a new asylum application he was transferred to the asylum application centre ( aanmeldcentrum ) at Schiphol, where he lodged his second asylum application on 16 July 2013.

6 . In an interview with the immigration authorities on the same day, the applicant stated that he had converted to Christianity. He submitted that his first encounter with the Christian religion had been in Greece, that he had been to church twice in the Netherlands and so already had a certain interest in Christianity. He stated that after he had been taken into immigration detention, he had been given a Bible, which he had started to read, and that he had later converted. On 12 May 2013 he had been baptised , while in detention. In support of his statement, the applicant submitted a baptism certificate dated 12 May 2013, issued by the Kores Church in Apeldoorn, and a letter dated 8 July 2013 from a minister, Ms A., of the Netherlands Protestant Church, stating that the applicant had attended and participated in Bible groups .

7 . The Deputy Minister of Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) rejected the applicant ’ s new asylum request on 22 July 2013, finding that his conversion was not credible. He referred to the proceedings on the applicant ’ s first asylum application, where he had not mentioned any interest in Christianity and had described himself as a practising Muslim. The Deputy Minister also referred to a lack of detail about the timing of the applicant ’ s decision to convert and several statements made during his interview that were vague and inconsistent. These included the statement that he did not know the date of his baptism and that he belonged to the Catholic Church, which he had later retracted by saying that he was a Protestant. He had also sometimes given inadequate answers when asked about the reason for his conversion, such as the statement that those who accept Jesus Christ did not harm others and that Islam represented violence, which he had failed to explain convincingly. The Deputy Minister added that knowledge of the Bible could be easily acquired, that it was relatively easy to join a church community and that it was known, ex officio , that the Kores Church readily carried out baptisms.

8 . Following a hearing on 7 January 2014, which was held in the presence of the applicant and counsel, the Regional Court of The Hague dismissed an appeal by the applicant on 11 February 2014 . Noting the various documents that had been submitted by the applicant, including a letter dated 13 December 2013 from the Elim Foundation ( Stichting Elim ) stating that the applicant had participated in meetings and activities at the Elim evangelical church and that there were no doubts about the sincerity of his belief, the court found that the applicant had introduced new facts in support of his latest asylum application. Nevertheless, the Regional Court concluded that the Deputy Minister had acted reasonably in coming to the conclusion that the applicant ’ s conversion lacked credibility. In that regard it took into account the fact that the applicant ’ s statements about the reasons for his decision to become a Christian had been vague, and that it could be expected from a convert to provide details about the process of conversion, especially if the person was from a country where conversion from the predominant religion could lead to punishment or be socially unacceptable. The Regional Court also rejected the applicant ’ s argument that he ran a risk of treatment in violation of Article 3 of the Convention in Kabul because of his Hazara ethnicity.

9 . A further appeal by the applicant was dismissed on 14 July 2014 by the Administrative Jurisdiction Division. On 9 July 2015 the applicant was again taken to immigration detention.

2. Third set of asylum proceedings

10 . On 13 July 2015 the applicant lodged a third asylum application. In an interview with the immigration authorities on 22 July 2015, in the presence of his counsel, the applicant stated that his faith had deepened since his conversion, that he had been expanding his knowledge of Christianity, and that he had been attending Bible studies and services at two churches, the Huis van Vrede (“The House of Peace”) and the International Christian Fellowship, both based in Utrecht. The applicant submitted that his conversion had given him peace and happiness and that the concepts of forgiveness and love appealed to him. Therefore, he had a deep-rooted internal motivation for his conversion. The applicant added that he had not informed anyone in Afghanistan about his conversion. He also submitted several documents, including a letter from the Dutch Council for Refugees ( Vereniging VluchtelingenWerk Nederland ), stating that the applicant had shown clear developments in his conversion process. He also submitted letters from ministers at the House of Peace and the International Christian Fellowship, stating that the applicant was an active member of those churches and attended their services, with the latter also stating that there were no doubts as to the sincerity of his conversion. He also submitted a letter from a Ms Z., confirming his attendance at Bible study groups.

11 . On 24 July 2015 the applicant was notified of the Deputy Minister ’ s intention to declare the new asylum application inadmissible as no new elements or findings had arisen or been presented by the applicant that gave cause to reach a different decision than on the previous application. In that regard the Deputy Minister held, inter alia , that up to that point the asylum statements presented by the applicant had not been believed, including his conversion to Christianity. While there was no doubt that the applicant had been involved in church activities, that in itself did not contradict the finding that his conversion lacked credibility. The letters submitted by the applicant had not provided any insight as to how the authors of those letters had determined that a genuine conversion had taken place. They merely mentioned a number of religious aspects and matters of fact, such as the applicant ’ s attendance at church and Bible study meetings. The Deputy Minister held that, in general, the making of a plausible case for a genuine conversion involved convincing statements about the process of conversion and about the knowledge of Christianity. It was assumed that a decision to convert to another religion was preceded by a profound internal process. It was therefore expected of the applicant that he could describe that internal process in a convincing way. The Deputy Minister considered that the applicant ’ s statements about the course of events during the alleged process of conversion, namely that he had found peace and that that had been given to him by God, had not in any way demonstrated a deep-rooted conviction, but had rather been mere platitudes.

12 . On 26 July 2015 the Deputy Minister declared the applicant ’ s third asylum application inadmissible. He also held that a letter from a friend of the applicant ’ s, written after notification of the Deputy Minister ’ s intention to declare the application inadmissible, in which the range of the applicant ’ s religious activities had been described, did not provide any further support for the applicant ’ s alleged conversion.

13 . A hearing was held by the Regional Court of The Hague, sitting in Haarlem, on 13 August 2015, in the presence of the applicant and his counsel. On 21 August 2015 the Regional Court dismissed the applicant ’ s appeal and an accompanying application for a provisional measure of a stay of removal pending the appeal proceedings. It found that the applicant ’ s account of the reasons for and the process of his conversion continued to be insufficient, given that his statements in that connection were limited and of a general nature only. The court also held that the applicant ’ s statements had been unable to show that the intensification of his alleged conversion had been considered and deliberate. That was not altered by the fact that the applicant had in the meantime acquired more knowledge about the Bible and had been able to give an account of the activities undertaken by him in order, allegedly, to deepen his beliefs. The court considered that the statements made by the applicant in support of his third asylum application had not constituted new facts or altered circumstances that would allow for a judicial examination of the impugned decision in the same way as if it had been a rejection of a first application for asylum. The Regional Court also found that the letters, declarations and reports submitted by the applicant with his third asylum application had similarly not constituted new facts or altered circumstances. While it accepted that a declaration by a religious organisation might be capable of corroborating a conversion, the Regional Court held that it was nevertheless incumbent on the applicant himself to provide a convincing account of his conversion and of the process leading up to it. As to the report introduced by the applicant into the appeal proceedings by the Gift Foundation ( Stichting Gave ), an interdenominational organisation supporting churches in their contacts with refugees and asylum seekers, which stated that the applicant ’ s conversion was genuine, the Regional Court held that the applicant had failed to demonstrate why he had not been able to introduce that report into the proceedings during his previous asylum application. Furthermore, it found that the report had also provided insufficient insight into the reasons for the applicant ’ s conversion and the process of that conversion, and that it had been drafted by a person who was not a psychologist of religion, but who had nevertheless used a model developed by such a psychologist to assess the applicant ’ s conversion. For that reason, the report could not be given the same weight as if it had been drawn up by a psychologist of religion. As the sincerity of the applicant ’ s conversion was given no credence, the Regional Court did not find it necessary to examine documents on the general security situation for Christians in Afghanistan submitted by the applicant. Lastly, the Regional Court held that documents submitted by the applicant had failed to demonstrate that the security situation in Kabul had worsened for the Hazara ethnic group.

14 . A further appeal by the applicant was dismissed on 29 September 2015 by the Administrative Jurisdiction Division. No further appeal lay against that decision.

15 . The applicant ’ s removal to Kabul was scheduled for 14 December 2015.

B. Developments after application to the Court

16 . The application was lodged with the Court on 13 December 2015. On 14 December 2015 the duty judge decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Afghanistan for the duration of the proceedings before it (Rule 39 of the Rules of Court).

C. Background material relevant to the applicant ’ s claim for asylum based on his Hazara ethnicity

17 . The most recent official country assessment report on Afghanistan drawn up by the Netherlands Ministry of Foreign Affairs was published on 17 September 2014. The relevant parts of the report read:

“ Hazaras

There are about 2.7 million Hazaras in Afghanistan – about 9% of the total Afghan population. Hazaras live mainly in the central mountainous part of Afghanistan and in the north, in the mountains of Badakhshan.

Hazaras form a Shiite minority in Afghanistan. In the past they have often been victims of discrimination on political, religious and racial grounds. During the Taliban regime abuses against the Hazara population took place in central Afghanistan in particular. This is also the reason that Hazaras are concerned about reconciliation talks with the Taliban. Because Hazaras made an important contribution to the victory over the Taliban, their situation has meanwhile improved. They have made economic and political progress since 2001. The Hazara population is represented in government institutions more than in the past.

... Social discrimination (in the shape of extortion through illegal taxation, forced conscription, forced labour, physical abuse and detention) of Hazaras is widespread, especially in areas where they form a minority. Violent incidents inspired by discrimination can still occur. For example, tensions between Kuchi and Hazaras occasionally surface. No major incidents have occurred during the reporting period. ”

18 . The “Country of Origin Information Report: Afghanistan – Security Situation Update”, published in January 2016 by the European Asylum Support Office of the European Union, states the following in relation to the ethnic composition of the current population of Kabul:

“Kabul is an ethnically diverse city, with communities of almost all ethnicities present in the country. Pashtuns, Tajiks, Hazaras, Uzbeks, Turkmen, Baluchs, Sikhs and Hindus all reside there with no group clearly dominating. As people tend to move to areas where they already have family or into particular districts as part of a larger group with the same ethnicity, different neighbourhoods have become associated with different ethnic groups.”

19 . The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan of 19 April 2016 provide the following on the situation of the Hazaras in Afghanistan:

“ III. Eligibility for International Protection

...

UNHCR considers that in relation to individuals with the profiles outlined in this Section a particularly careful examination of possible risks is required. ...

A. Potential Risk Profiles

...

13. Members of (Minority) Ethnic Groups

... As a result of a variety of historical population movements, both forced and voluntary, some members of ethnic groups now reside outside areas where they traditionally represented a majority. ... a member of an ethnic group or clan constituting a minority at the national level may not face any discrimination on the grounds of ethnicity in areas where this ethnic group or clan represents the local majority.

...

b) Hazaras

Hazaras have been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse. Hazaras have historically been marginalized and discriminated against by the Pashtuns. While they were reported to have made significant economic and political advances since the 2001 fall of the Taliban regime, more recently there has reportedly been a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and other AGEs [Anti-Government Elements].

...

e) Summary

... UNHCR considers that individuals who belong to one of Afghanistan ’ s minority ethnic groups, particularly in areas where they do not constitute an ethnic majority, may be in need of international refugee protection on the basis of their nationality or ethnicity/race, or other relevant grounds, depending on the individual circumstances of the case. Relevant considerations include the relative power position of the ethnic group in the applicant ’ s area of origin, and the history of inter-ethnic relations in that area.

...

International protection needs based on ethnicity/race may overlap with those based on religion and/or (imputed) political opinion. Due consideration should also be given to whether other risk profiles outlined in these Guidelines apply to the person concerned.”

COMPLAINT

20 . The applicant complained under Article 3 of the Convention that there were substantial grounds for believing that he would be subjected to treatment prohibited by that provision if he was expelled to Afghanistan, on account of his conversion to Christianity, his westernisation as a result of having lived abroad for more than four years and his Hazara origin.

THE LAW

21 . The applicant complained that his expulsion to Afghanistan would be contrary to Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. General principles

22 . The Court reiterates the general principles regarding the assessment of applications for asylum under Articles 2 and 3 of the Convention as recently set out in the judgment in the case of F.G. v. Sweden ([GC], no. 43611/11, §§ 111-118, 23 March 2016, with further references). Most importantly , the machinery of complaint to the Court being subsidiary to national systems safeguarding human rights, the Court does not itself examine the actual asylum applications. Its main concern is whether effective guarantees exist that protect the applicant against refoulement , be it direct or indirect, to the country from which he or she has fled. Moreover, where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts – as a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned.

23 . The judgment in F.G. v. Sweden (cited above) also contains an overview of the State ’ s procedural duties in the examination of applications for asylum (ibid., §§ 119-127). Of particular relevance to the present case are the Court ’ s following considerations:

“123. In respect of sur place activities the Court has acknowledged that it is generally very difficult to assess whether a person is genuinely interested in the activity in question, be it a political cause or a religion, or whether the person has only become involved in it in order to create post-flight grounds (see, for example A.A. v. Switzerland, no. 58802/12, § 41, 7 January 2014). That reasoning is in line with the UNCHR Guidelines on International Protection regarding Religion-Based Refugee Claims of 28 April 2004, which state ‘ that particular credibility concerns tend to arise in relation to sur place claims and that a rigorous and in-depth examination of the circumstances and genuineness of the conversion will be necessary ... So-called “self-serving” activities do not create a well-founded fear of persecution on a Convention ground in the claimant ’ s country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned ’ (see paragraph 52 above). See also the Court ’ s finding in, for example, Ali Muradi and Selma Alieva v. Sweden ((dec.), no. 11243/13 §§ 44-45, 25 June 2013) to this effect.”

B. Application of the general principles to the present case

24 . In applying the above principles to the present case, the Court finds it appropriate to separate the examination of the case into three parts: first, the applicant ’ s alleged conversion to Christianity in the Netherlands; second, the argument that he has become westernised; and third his Hazara ethnicity.

1. The applicant ’ s alleged conversion

25 . In the present case, the Netherlands authorities were confronted with a sur place conversion. Thus, the domestic authorities initially had to assess whether the applicant ’ s conversion was genuine and had attained a certain level of cogency, seriousness, cohesion and importance (see F.G. v. Sweden , cited above, § 144, with further references), before assessing whether the applicant would be at risk of treatment contrary to Article 3 of the Convention upon his return to Afghanistan.

26 . The Court notes that the immigration authorities interviewed the applicant in person in the course of the two asylum applications based on his alleged conversion (see paragraphs 6 and 10 above). Those authorities did not believe that the applicant had genuinely converted and took account of the lack of detail provided by the applicant concerning the timing of his decision to convert ; the general, vague, inconsistent and inadequate nature of his statements; and his continued inability to provide insight about the internal process motivating him to convert.

27 . The Court further observes that the applicant was able to challenge the decisions rejecting his asylum applications in appeal and further appeal proceedings and that the applicant was represented by counsel throughout those proceedings. It also notes that appeal hearings were held before the Regional Court of The Hague (see paragraphs 8 and 13 above) and that that tribunal examined the merits of the applicant ’ s claim that he would incur an Article 3 risk following removal to Afghanistan in its decision of 11 February 2014 (see paragraph 8 above ) . In its decision of 21 August 2015, the Regional Court found that notwithstanding the documentary support submitted by him, including the report by Stichting Gave (see paragraph 13 above), the applicant ’ s own statements were of such a general nature that the reasons for and the process of his conversion had still not been elucidated.

28 . The Court sees no grounds to depart from the conclusions drawn by the administrative and judicial authorities concerning the credibility of the applicant ’ s alleged conversion, conclusions which were reached following a thorough examination of all the relevant and available information. It further cannot find any indications that the proceedings before those authorities lacked effective guarantees to protect the applicant against arbitrary refoulement or that they were otherwise flawed. It also considers that the applicant has not made any submissions about circumstances or provided any supporting documents to lead the Court to depart from the domestic authorities ’ conclusions.

29 . In the light of the above, the Court considers that the applicant has failed to show that his return to Afghanistan would expose him to a real risk of being subjected to treatment contrary to Article 3 of the Convention on account of his alleged conversion.

30 . It follows that that part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Westernisation

31 . As regards the applicant ’ s claims that his westernisation meant he would face a real risk of being subjected to treatment contrary to Article 3, the Court notes that the applicant failed to raise that issue before the domestic authorities.

32 . It follows that that part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

3. Hazara ethnicity

33 . The applicant argued that if he was returned to Afghanistan he would face a real risk of being subjected to treatment in violation of Article 3 on account of his Hazara ethnicity.

34 . The Court notes that according to the aforementioned UNHCR Eligibility Guidelines (see paragraph 19 above), Hazaras may, as members of an ethnic minority group, particularly in areas where they do not constitute an ethnic majority (see also paragraph 17), be in need of international refugee protection, depending on the individual circumstances of the case. However, it appears that the Netherlands authorities intend to expel the applicant to Kabul, where he lived for several years prior to his departure from Afghanistan (see paragraphs 3 and 15 above), and where Hazaras do not constitute a minority and, in certain neighbourhoods, even represent the majority ethnicity (see paragraph 18 above). The Court considers that the applicant has failed to demonstrate that there are individual circumstances or other relevant grounds in relation to his ethnicity that would lead him to incur a risk of treatment contrary to Article 3 if he were returned to Kabul.

35 . In the light of the above, the Court considers that the applicant has failed to show that his return to Afghanistan would expose him to a real risk of being subjected to treatment contrary to Article 3 of the Convention on account of his Hazara ethnicity.

36 . Accordingly, that part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1 and 3 (a) and 4 of the Convention.

37 . In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 28 July 2016 .

             Stephen Phillips Luis López Guerra Registrar President