CEDAW Committee declares asylum communication inadmissible (Y.C. v. Denmark)

In June 2011, Y.C., a Chinese national, sought asylum in Denmark. In support of her claim for asylum, she alleged that, if deported to China, she: faced a real, personal and foreseeable risk of further domestic violence by her former partner; and would not be able to exercise her religion freely.

In August 2011, the Danish Immigration Service rejected her asylum claim, which the Refugee Appeals Board later upheld on appeal. The Board accepted Y.C. was a victim of violence, but noted that she had not reported it or the removal of her child by her former partner to Chinese authorities. It also noted that Y.C.’s relationship with her former partner was a matter of private law and that conflict between them did not mean she would ‘necessarily risk persecution or outrages of a nature set out in section 7 (2) of the Aliens Act’. It considered it relevant that the former partner had not sought out Y.C. Additionally, it found that, although Y.C. ‘had to exercise he religion discretely, she could not be considered to be specifically and individually persecuted by the Chinese authorities on religious grounds’.

In January 2013, Y.C. submitted an individual communication to the Committee on the Elimination of Discrimination against Women. She alleged that deporting her to China would constitute a violation by Denmark of the Convention on the Elimination of All Forms of Discrimination against Women, specifically articles 1 to 3 and 5, read in conjunction with General Recommendation No. 19. Y.C. claimed that:

  • Chinese authorities would not afford her adequate protection against the real, personal and foreseeable risk of domestic violence she faced, if returned to China by Denmark, or grant her access to, or custody of, her child
  • the State Party would, by deporting her, violate her freedom of religion.

Y.C. was awaiting deportation to China when she submitted her communication to the CEDAW Committee. She made a request for interim measures under article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, to stay the deportation pending the Committee’s consideration of the communication. The Committee declined her request and did not report any reasons for its decision.

State Party’s observations on admissibility

The State Party claimed that the communication was inadmissible as it was incompatible with CEDAW and manifestly ill-founded and unsubstantiated, pursuant to articles 4(2)(b) and 4(2)(c) of the Protocol, respectively. Among other things, it claimed that Y.C.:

  • sought to apply CEDAW in an extraterritorial manner
  • failed to sufficiently substantiate (for admissibility purposes) that she faced a real, personal and foreseeable risk of domestic violence, if deported
  • had not made explicit or sufficiently substantiated which CEDAW provisions would be violated, if she was deported
  • had not reported her situation to Chinese authorities or demonstrated that those authorities would not protect her adequately, if returned to China.

Committee’s decision on admissibility

The CEDAW Committee declared the communication inadmissible under article 4(2)(c) of the Optional Protocol, as both insufficiently substantiated and manifestly ill-founded. It declined to consider whether the communication was compatible with CEDAW, pursuant to article 4(2)(b) of the Protocol.

Y.C. failed to substantiate her claim sufficiently

The Committee determined that Y.C. had failed to substantiate, for the purposes of admissibility, her claim that Chinese authorities would not afford her adequate protection against violence or grant her access to, or custody of, her child. In doing so, it noted that Y.C. had not: reported her situation, including the alleged violence, to Chinese authorities; or provided an adequate explanation for her failure to seek to see, or obtain custody of, her child for several years.

Y.C.’s claim was manifestly ill-founded

In determining that the communication was manifestly ill-founded, the Committee noted that Y.C. had not provided sufficient information to support her claim of religious-based persecution and noted the State Party’s claim that Y.C. had alleged a violation of article 18 of the International Covenant on Civil and Political Rights and not CEDAW. It further noted that Y.C. had not substantiated that she was a victim of gender-based discrimination, as part of her claim that she would not be able to exercise her religious beliefs freely in China.

Communication No. 59/2013, UN Doc. CEDAW/C/59/D/59/2013 (2014)

Decision

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