Germany - High Administrative Court Hamburg, 22 April 2010, 4 Bf 220/03.A
| Country of Decision: | Germany |
| Country of applicant: | Ivory Coast |
| Court name: | High Administrative Court Hamburg |
| Date of decision: | 22-04-2010 |
| Citation: | 4 Bf 220/03.A |
| Additional citation: | asyl.net/M17103 |
Keywords:
| Keywords |
|
Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
|
Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
|
Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
|
Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
|
Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
Refugee protection was not granted, since the applicant, as a member of the particular social group of "Djoula living in the South of Côte d’Ivoire" (Art 10.1(d) Qualification Directive) was not subject to political persecution when he left Côte d’Ivoire in 2001. The court found that group persecution was not established due to the insufficient frequency of acts of persecution against members of this group and therefore in case of return, the applicant would not face such group persecution.
Facts:
The applicant, born in 1976, belongs to the Djoula ethnic group and is a Muslim. He first entered Germany and applied for asylum in 1992. After his application was rejected, he was deported to Côte d’Ivoire in 1999. In December 2001 he returned to Germany and applied again for asylum.
The application was rejected by the authorities and the applicant appealed to the Administrative Court. In its judgment of 22 May 2003, the Administrative Court required the authorities to grant the applicant refugee status. The court held that the applicant, being a Djoula and Muslim, would be at risk of group persecution in case of return.
The authorities appealed this decision, arguing that it needed to be fundamentally clarified if a Djoula and Muslim would be at risk of group persecution in case of return and, if this was affirmed, is internal protection available in Côte d’Ivoire.
Decision & reasoning:
The court stated that according to Art. 60 (1) (4) and (5) of the Residence Act, the facilitated standard of proof of Art. 4.4 of the Qualification Directive has to be considered regarding the question of which standard of proof is to be applied when examining the risk of persecution in case of return. Contrary to the previous view of the Federal Administrative Court, past persecution in the context of recognition of refugee status under the Qualification Directive can no longer be denied because an internal protection alternative existed in other parts of the country of origin. The very wording of Art. 4.4 indicates that an applicant who has suffered persecution in his country of origin, or was directly threatened with persecution there, is entitled to the facilitated standard of proof under Art. 4.4, irrespectively of whether he might also have found refuge in another part of his country of origin at the time of emigration (Federal Administrative Court, 19 January 2009,10 C 52.07).
According to the court’s assessment, there would not be a considerable risk of persecution, in terms of Art. 9 of the Qualification Directive, for the applicant, who had not been subjected to persecution previously, in case of his return to his country of origin. The court stated:
In the recent past, it is not justified to say that members of the Djoula group in Côte d’Ivoire have been at risk of becoming victims of acts of persecution in terms of Art. 9 of the Qualification Directive. Even after the peace treaty of March 2007 there were a number of ethnically and/or politically motivated clashes in Côte d’Ivoire. These incidents, however, were not comparable in type, extent and intensity with the acts of violence and the armed hostilities that took place during the civil war in September 2002 and the time thereafter.
The high level of crime in Côte d’Ivoire and the risk of falling victim to severe crimes linked with it, does not per se constitute a valid reason to establish a fear of persecution in terms of Art. 9 and 10 of the Qualification Directive.
Finally, there is no reason to fear that the situation for (Muslim) Djoula in Côte d'Ivoire, with regard to possible persecution, will change in the near future. Therefore, having regard to the standard of ‘substantial likelihood’ necessary in this context, the risk of a future group persecution can be excluded. There are no signs of a possible change of the current situation.
Outcome:
The decision of the Administrative Court was annulled; therefore the initial rejection of the asylum application was upheld in full.
Subsequent proceedings:
The High Administrative Court did not grant a further review / "Revision".
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 19 January 2009, 10 C 52.07 |
| Germany - Federal Administrative Court, 20 March 2007, 1 C 21.06 |