View Adopted: 2017.03.20
The author of the communication is a male to female transgender of Malaysian nationality who underwent gender reassignment surgery in Thailand in 2007. She is ethnically Malay and a registered Muslim but she considers herself Hindu. Around 1998-1999, the author was raped by several unknown individuals and from around 2001 to 2010, on several occasions the author was taken into custody and physically and sexually abused by the Malaysian police. There was an occasion where the author went to the police office in Kuala Lumpur to report the rape, but the police refused to register her complaint. After this the author decided not to report any further abuse. In 2012 the author was taken and detained by the police. During this detention photographs were taken of the tattoo on her hand, as it is not permitted for a Muslim in Malaysia to have tattoos and to change religion. They also took her women’s shoes, since it is forbidden for men to wear women’s clothing.
The author arrived in Denmark in January 2014 and applied for asylum a few days later. Her application was rejected in August 2014 as the Danish authorities found her allegations of detention and sexual abuse by the Malaysian police inconsistent and implausible, in particular in light of the fact that the author had traveled several times to other countries prior to 2014. The authorities also noted the fact that she had not been charged with a criminal offense and that she had not been detained between her last arrest in April 2012 and her departure from Malaysia in January 2014. By the end of 2014 the author appealed that decision on her asylum request, and in 2015 she requested a reopening of her case, but both of these claims were rejected.
The author claims that her forcible return to Malaysia would violate her rights under article 7, in conjunction with articles 17(1), 18(1) and 26 of the Covenant. Article 7 would be violated due to the risk that she would face sexual violence by the police upon return based on her gender identity and appearance. Secondly, art. 18(1) would be violated in conjunction with article 7 because her religious conversion would put her at risk of imprisonment under Sharia law. Finally, the author claims a violation of articles 17(1) and 26 in conjunction with article 7 because her gender identity and appearance are being made public as a consequence of her pending case before the Sharia Court. Furthermore, if sentenced, the author would be imprisoned with men due to her national ID documents, and this could also represent a risk of sexual abuse upon return to Malaysia.
The Committee declares the communication inadmissible with regards to the author’s complaint under article 18(1) in conjunction with article 7 of the Covenant, as it considers that her claim of an alleged punishment for her religious conversion to Hinduism was insufficiently substantiated. First, because the author had informed the Danish authorities that she had not formally converted to Hinduism, and she has also not provided any details to the Committee with respect to her conversion. Second, the author has not claimed that her case before the Sharia Court relates to her religious conversion. She has also not established that she had already been, or that she would be, at risk of persecution upon return in Malaysia on account of her religious conversion.
Nonetheless, the Committee considers that the author has sufficiently substantiated her claims with regards to the violations of article 7 in conjunction with articles 17(1) and 26 of the Covenant. First, because the author claims that she had been previously detained and subjected to sexual abuse on account of her gender identity and appearance which do not correspond to her ID documents and to Sharia law, and because her return to Malaysia would expose her to a risk of police harassment and further abuse.
In assessing the merits of the case, the Committee referred to the prohibition against refoulement contained in its General Comment No. 31 (§12). In that sense, States are obliged not to “extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by article 7 of the Covenant.” Furthermore, the Committee clarifies that the risk must be personal and that there is a high threshold for establishing it. The Committee also referred to the considerable weight that should be accorded to the assessment of that risk by State parties to the Covenant. It is generally upon their organs to review and evaluate the facts and evidence in the determination of the existence of such risk, unless it is demonstrated that their assessment was arbitrary or amounted to a denial of justice (Communication No. 1957/2010, Lin v. Australia).
The Committee notes that the State party has acknowledged the author’s gender change and the fact that she may have been detained in the past. However, the Danish asylum authorities found her allegations of detention and in particular sexual abuse to be poorly substantiated and inconsistent on several grounds. Moreover, the author has not established any irregularities or deficiencies in the decision-making processes by the State party when assessing the risk of ill-treatment that she could face upon return, and she has not explained how the proceedings before the Danish authorities regarding her case entailed any form of arbitrariness or denial of justice.
Therefore, the Committee could not conclude that the removal of the author to Malaysia would violate her rights under article 7 read in conjunction with articles 17(1) and 26 of the Covenant.