Czech Republic - Supreme Administrative Court, 2 August 2012, H. R. v. Ministry of the Interior, 5 Azs 2/2012-49
| Country of Decision: | Czech Republic |
| Country of applicant: | Iraq |
| Court name: | Supreme Administrative Court |
| Date of decision: | 02-08-2012 |
| Citation: | 5 Azs 2/2012-49 |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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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. |
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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. |
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Acts contrary to the purposes and principles of the UN
Description
Extreme activity with an international dimension committed by persons who have been in positions of power in a state or state-like entity and which attacks the very basis of the international community's coexistence. May include crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights. |
Headnote:
Conclusions on exclusion from protection are to be supported by factual findings and cannot be presumed, especially with an applicant, who through the credibility assessment, is deemed to be untrustworthy by an administrative body. Belonging to the army under Saddam Hussein might, together with the Sunni religion of the applicant, be understood as a reason for well-founded fear of persecution because of membership of a particular social group.
Facts:
A member of the army of Saddam Hussein fled to the Czech Republic where in 2007, he applied for asylum along with all of his family after his son had been kidnapped, and he had been blackmailed and had suffered repeated physical attacks from Shiite militia. The Ministry of the Interior dismissed the application for asylum for all persons, but granted subsidiary protection to the applicant’s wife and children. It was then stated that the applicant himself was excluded from the protection since he had committed acts that were contrary to the purposes and principles of the UN and crimes against humanity. The decision was revoked, partly by the Regional Court and then in its entirety by the Supreme Administrative Court.
Decision & reasoning:
The administrative body erred on the one hand when it did not consider the testimony of the applicant to be credible for the purposes of evaluating fear of persecution, and on the other hand it considered it to be proven (for the purposes of exclusion from protection) that the applicant had been involved in the army, which is why, according to the administrative body, it is necessary to conclude that his participation in crimes against humanity is contrary to the purposes and principles of the UN.
No reasons for exclusion flow from the proof documented in the administrative records. Moreover, the administrative body and the Regional Court erred when they did not consider the well-founded fear of persecution that the applicant linked to his involvement in the army under the previous political regime. Proof submitted by the applicant was not disputed and therefore it may be considered to be proven that the afore-mentioned person is a citizen of Iraq, had been involved in the army of Saddam Hussein and follows the Sunni religion. It may therefore be concluded that the applicant’s position can be classified as belonging to a particular social group.This group can be “quite easily defined, as these are the persons who, before the fall of Saddam Hussein’sregime, were involved in the Iraqi army and in other armed bodies, or are those who participated in exercising power. This is why they are perceived by the rest of the population to be supporters or representatives of the former regime, especially when they also follow the Sunni religion.This is a group of persons that may be quite accurately identified as they have identical or similar status and these persons could be exposed, according to the mentioned recommendation of the UNHCR, to the risk of persecution by armed groups and attacks, something that the Iraqi government is not able to prevent at the moment.”
The administrative body and the court should have addressed these reasons for well-founded fear of persecution. The conclusion of the administrative body that the reason for possible persecution was revenge upon the applicant for acts he had committed is also in contradiction with the law. Reasons for persecution, regarding meeting the definition of well-founded fear, are completely irrelevant.
Outcome:
Judgment and decision of the administrative court is revoked.
Observations/comments:
The decision of the Supreme Administrative Court literally quotes a part of the UNHCR recommendation on the international protection needs of Iraqi asylum seekers, which points out the very problematic status of these persons and their persecution.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 12(b) |
| Czech Republic - Code of Administrative Procedure (500/2004 Coll.) - Art 3 |
Cited Cases:
| Cited Cases |
| Czech Republic - Supreme Administrative Court, 19 May 2004, M.I. v Ministry of the Interior, 5 Azs 63/2004-60 |
Other sources:
Recommendation of the UNHCR on International Protection Needs of Iraqi Asylum Seekers (2007)