Germany - High Administrative Court Bayern, 3 February 2011, 13a B 10.30394
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | High Administrative Court Bayern |
| Date of decision: | 03-02-2011 |
| Citation: | 13a B 10.30394 |
| Additional citation: | asyl.net/M18295 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
The applicant, being a young, single man and fit for work, is at no substantial individual risk, neither in his home province Parwan nor in Kabul. Therefore, it can remain undecided if the conflict in Afghanistan constitutes an internal armed conflict.
Facts:
The applicant originates from the province of Parwan in Central Afghanistan. He belongs to the ethnic group of the Hazara and to the religious group of the Shiites. He came to Germany in April 2002 as an unaccompanied minor at the age of 16 and applied for asylum. The application was rejected by the authorities and the rejection became legally valid.
In June 2007, he filed a subsequent asylum application, stating that the security situation in Afghanistan was dramatic. Furthermore, the humanitarian situation was unbearable. In case of return to Afghanistan, he would not be in a position to secure his livelihood. According to his statement, he had no relatives in Afghanistan and he would not be able to find shelter.
The subsequent application was rejected by the authorities and his appeal against the rejection was dismissed by the Administrative Court. The court held, inter alia, that at the time of its decision there was no internal armed conflict taking place in the whole territory of Afghanistan, since the civil war-like armed conflict did not take place in all provinces and in particular not in Kabul.
The applicant submitted a further appeal (Berufung) at the High Administrative Court. He claimed that protection under Art. 15 (c) of the Qualification Directive did not require a nationwide armed conflict.
Decision & reasoning:
The High Administrative Court found that the decision of the Administrative Court was lawful. The applicant was not eligible for subsidiary protection. The court stated:
The issue of whether there is an internal armed conflict according to Art. 15 (c) Qualification Directive in Afghanistan or in parts of Afghanistan can be left open, since the applicant would not be exposed to a serious and individual threat to life or physical integrity in case of return.
According to the case law of the Federal Administrative Court, the assumption of such an individual risk requires a sufficient “density of danger”. In order to establish if such a “density of danger” exists, it is necessary to determine the relation between the number of inhabitants with the number of victims in the relevant area. In addition, it is necessary to make an evaluating overview of the number of victims and the severity of casualties (deaths and injuries) among the civilian population.
The applicant, according to his statement, originates from a town in the province of Parwan. In 2009, the security situation in this province was considered as “moderate” according to the information gathered by the court. There were four security-relevant incidents in 2009, in which eight civilians were killed and 81 civilians were injured. Just one attack on a wedding ceremony accounted for 6 of the fatalities and 64 of the injuries. When calculating the relation between these figures and the number of inhabitants, it turns out that the statistical risk of falling victim to an attack in Parwan in the year 2008 was approximately 0.018%.
It is true that the security situation in Afghanistan has deteriorated nationwide in 2010. However, it cannot be established that the security situation in the provinces of Parwan and Kabul deteriorated in 2010 or will deteriorate in 2011 to such an extent that practically any civilian would be exposed to a serious and individual threat solely by being present in the relevant territory.
Furthermore, one cannot assume that there are individual “risk-enhancing” circumstances which would lead to a concentration of risks for the applicant. Such circumstances do not arise from the fact that the applicant belongs to the Hazara minority. According to the information available to the court, the overall situation of the Hazara, who have traditionally been discriminated against, has improved, even if traditional tensions persist and reappear from time to time. The Hazara have always lived in the provinces of Parwar and Kabul and, according to information from UNHCR, many Hazara returned to this region. Neither does the applicant’s membership of the religious group of Shiites constitute an individual “risk-enhancing” circumstance since 15 per cent of the Afghan population are Shiites.
Outcome:
The further appeal (Berufung) was dismissed. The applicant was not eligible for subsidiary protection or another form of protection.
Subsequent proceedings:
Unknown
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 27 April 2010, 10 C 4.09 |
| Germany – Federal Administrative Court, 14 July 2009, 10 C 9.08 |