Germany - Administrative Court Meiningen, 2 February 2010, 2 K 20113/08 Me

Facts:

The applicant is Vietnamese citizen. His first asylum application was rejected in 1995. In 1999, he returned to Vietnam. He was active in politics against the communist regime there and therefore had to go into hiding. He advocated to a significant extent against the regime. On the 2 January 2008, he returned to Germany and filed a subsequent application for asylum on April 14 2008. By decision of the 11 of July 2008, the authorities refused to carry out a new asylum procedure. The applicant appealed this decision.

Decision & reasoning:

As the applicant filed a subsequent application for asylum three months after his arrival in Germany, the legal deadline of three months to refer to new circumstances regarding his political activities in Vietnam had expired.
This deadline had to be considered even with regard to the applicant’s political activities in exile. The applicant presented evidence of a number of political activities in exile in compliance with the deadline. In case of return to Vietnam he was deemed, with considerable probability, to be at risk of political persecution due to his political activities in exile, which he exercised in public, in a particularly exposed and sustainable manner. The court found:

The application of Section 28 (2) of the Asylum Procedure Act (see comments section below) did not prohibit a successful appeal by the applicant. This provision does not exclude the granting of refugee status in subsequent asylum proceedings due to applicant’s political activities in exile, even if the applicant engaged in these activities only after the first asylum claim was lawfully dismissed (for a different opinion see Federal Administrative Court, 18 December 2008,10 C 27/07).The court did not follow the case law of the Federal Administrative Court for the following reasons:

The new version of Section 28 (1a) and (2) of the Asylum Procedure Act implements Art 5 of the Qualification Directive. This arises from the adoption of the term "circumstances" in Art. 5.3 of the Directive into the legal text of Section 28 (2) of the Asylum Procedure Act. Political activities in exile, however, are not "circumstances" within the meaning of the Qualification Directive. Art. 5.2 provides that fear of persecution can also be based on such "activities" which have been engaged in by the applicant since leaving the country of origin, in particular in those special cases as described. This provision does not contain any restrictions. This corresponds essentially to the new Section 28 (1a) of the Asylum Procedure Act, although the term “activities” has not been adopted.

The competence of Member States to regulate applying Art. 5. 3 of the Qualification Directive, without prejudice to the 1951 Refugee Convention, regarding subsequent applications, according to which Member States may determine that an applicant shall normally not be granted refugee status if the risk of persecution is based on “circumstances” which the applicant has created by his own decision since leaving the country of origin, is, according to the linguistic usage of the Directive (c.f. Art 4.3 (c)) limited just to personal circumstances (family and social background; marriage, children, unemployment). Therefore, "activities" mentioned in Art. 5.2 have to be distinguished from "circumstances" in Art. 5.3 both, linguistically and factually, as is also demonstrated in the differentiation in Art. 4 (3) (c) and (d) of the Qualification Directive. If the applicant, in case of return, is at risk of persecution due to such “activities”, refugee status has to be granted. A restriction would not be compatible with Art. 5.2 of the Qualification Directive and has not been intended by German lawmakers (any more) when creating Section 28 (2) of the Asylum Procedure Act. 
 
As explained before, political activities in exile within the meaning of Art. 4.3 (d) of the Qualification Directive have to be distinguished from (personal) "circumstances" according to Art. 5. 3  of the Qualification Directive. They are not covered by the competence of Member States to regulate in accordance with Art. 5.3. This approach has been followed by German lawmakers by adopting the term "circumstances" in Section 28 (2) of the Asylum Procedure Act. Therefore, the court believes this provision in German law must be understood as having the same meaning as Art. 5.3 of the  Qualification Directive. There is no place for an interpretation by referring to the motivation of lawmakers when the previous version of Section 28 (2) of the Asylum Procedure Act was created.

Outcome:

The court ordered the authorities to grant the applicant refugee status.

Subsequent proceedings:

The authorities filed an application to be granted a further appeal to the High Administrative Court Thüringen, which is still pending at January 2012.

Observations/comments:

An English translation of the decision – 10 C 27/07 - of the Federal Administrative Court of 18 December 2008 is  available at:
http://www.bverwg.de/enid/55f6bed7de95d691a64112f1a2f3f6bc,0/Decisions_in_Asylum_and_Immigration_Law/BVerwG_ss__C_27__7_kn.html

For easy reference only, not taken from the court decision: The wording of Section 28 Asylum Procedure Act:

(1) As a rule, a foreigner shall not be recognized as being entitled to asylum if the threat of political persecution is based on circumstances resulting from a deliberate decision by the foreigner after leaving his country of origin, unless this decision is in line with firm convictions he clearly acted on while still in his country of origin. The first sentence shall not apply in particular if the foreigner, due to his age and level of maturity in the country of origin, was not yet able to form firm convictions of his own.

(1a) A threat pursuant to Section 60 (1) of the Residence Act may be based on events that occurred after the foreigner left his country of origin, and in particular on conduct by the foreigner that expresses a continuing conviction or orientation that already existed in the country of origin.

(2) If the foreigner again applies for asylum after withdrawal or incontestable rejection of an earlier application and the new application is based on circumstances of his own creation after the withdrawal or incontestable rejection of the earlier application, he cannot as a rule be granted refugee status in a subsequent procedure.