Case summaries

1. If an Iranian national is declined the opportunity to obtain a school-leaving certificate and attend a state school because of the refusal by Iranian authorities to issue him with identity papers, this constitutes a significant discriminatory administrative measure according to Article 9 paragraph 2 of the Qualification Directive.

 
2. The right to suitable education corresponding to a child’s abilities is recognised as a human right according to international law.

In this case the Tribunal considered the general country situation in Somalia as at the date of decision for five applicants, both men and women from Mogadishu, south or central Somalia, Somaliland and Puntland. The risk of female genital mutilation (FGM) was also considered.

An Ethiopian man was considered eligible for protection as a refugee due to his involvement in the government-hostile OLF guerilla group, which has been declared a terrorist organisation.

The Applicant fled to Austria to be with her husband. She pleaded no reasons for fleeing such as problems of living as a woman in Afghanistan and the Federal Asylum Agency also made no investigations into this aspect. Only in the appeal were specific women’s issues raised. The Asylum Court decided that the Federal Asylum Agency was obliged to undertake the appropriate investigations under apparent theoretical circumstances relevant to asylum (such as gender), even if the party did not initiate such a submission. 

Appeal against the General Secretary of the Ministry of Public Order's negative decision no 95/52986 of 28.4.2006 on a claim for asylum before the Appeal Committees formed pursuant to Articles 26 & 32 of Presidential Decree 114/2010 and the Minister of Citizen Protection's decision 5401/3-505533 of 7.11.2011 (385/8-11-2011 FEK YODD) pursuant to which the present Committee was formed.

This case involved a fear of persecution because of religious beliefs (atheism) as well as because of membership of a particular social group (personality shaped in a non-Islamic society / westernisation). In particular, the Committee ruled that if the Applicant were to return to Afghanistan now or in the near future, because of his atheism and the consequent non-conformity with the Islamic way of life of the society into which he would need to integrate, in conjunction with the fact that his personality has been shaped in a non-Islamic society with customs and a way of life totally different from those of Muslims, he would be reasonably likely to suffer aggressive social attitudes, threats and social exclusion which, taken cumulatively, could amount to persecution. Besides, should he return to a small rural community in Afghanistan – given the Applicant's particular personality and how it had been shaped – it is very likely that he would not be able to conceal his religious beliefs (atheism) and thus there was a reasonable chance that he would be at risk of criminal prosecution because of his atheism and his 'apostasy' from Islam (prosecution which is reasonably likely to lead to imprisonment or execution). This, however, would constitute a direct and severe violation of his fundamental right to religious freedom, especially in the context of the specific social, religious and political unrest and the absence of legal guarantees in the Applicant's country of origin.

It was held that even if he were not criminally prosecuted, the Applicant would, in any case, be at risk of suffering harm from non-state actors in the form of persecution; and that the Afghan State, police and other authorities were incapable of providing adequate and effective protection, mainly because of the lack of organisation and the corruption which prevails at all levels.

Tibetans in China are not at risk of “group persecution” based on their ethnicity. However, individual acts of persecution (the rape of a Tibetan woman by security forces in the present case) do constitute past persecution since they have to be regarded as being connected to the persecution ground “race”.

When refusing a claim for asylum the decision-maker must establish beyond reasonable doubt that the applicant's fear is not well founded.

Subsidiary protection was granted to a Roma of Serbian nationality who originated from Kosovo as the Court considered that he would currently face a risk of treatment contrary to human dignity in case of return to Serbia or to Kosovo.

The General Secretary of the Ministry of Public Order, having had an application for asylum referred back to it, considered whether the submitted evidence was “new and crucial”. If so, an ab initio examination of the application would be ordered. Failure to give notification of an act does not affect its validity, but only the start of the deadline for submitting an application for its annulment. The copy of the Turkish Government Gazette which promulgated the decision regarding withdrawal of the Applicant's nationality, was new and crucial evidence. There was no justification for refusing the request for an ab initio examination of the Applicant's circumstances, nor for rejecting his application to remain in the country on humanitarian grounds.

Since the situation of generalised violence which prevailed in Sri Lanka ended with the military defeat of LTTE combatants in May 2009, the only valid ground for claiming subsidiary protection would be Article L.712-1 b) Ceseda [which transposes Article 15 (b) of the Qualification Directive]. The applicant has to establish an individual risk of persecution or ill-treatment in case of return to his/her country of origin.