Finland - Supreme Administrative Court, 2 April 2013, 292/1/13
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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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
Headnote:
A Gambian asylum seeker’s account of approximately eight years’ imprisonment and torture there was not considered credible. The Immigration Service and the Helsinki Supreme Administrative Courtconsidered the application to be manifestly unfounded and the Supreme Administrative Court did not give leave to appeal on the matter. The UN Committee against Torture had, however, requested that the Applicant not be returned to his home country, The Gambia, until UNCAT had examined the complaint.
Facts:
The Applicant was imprisoned in his home country for approximately eight years after, together with his friend, he accidently drove over a man who died. The Applicant was tortured in prison, for instance by having water poured over him, being hit and being held in forced positions. The Applicant was afraid of being arrested again by the authorities if he was returned to his home country. The Immigration Service did not consider the Applicant’s account was credible because he couldn’t produce any documents on his imprisonment, nor could he remember exact times, the account was superficial and he wasn’t left with any visible injuries from torture. The Immigration Service also did not consider credible that the Applicant could not convincingly show that he was in danger of being imprisoned again in his home country. The Immigration Service considered that the Applicant’s reason for imprisonment was not consistent with any of the reasons for persecution as specified in the Aliens Act and it was possible to treat the application as manifestly unfounded because the Applicant has not produced any evidence relating to non-refoulement as specified in the Aliens Act, Section 87 Article 1, Section 88 Article 1 or other grounds relating to non-refoulement.
According to the Immigration Service, the application was manifestly unfounded he could be sent back to Gambia and he was given a two year Schengen entry ban.
An appeal regarding the decision by the Immigration Service was lodged with the Helsinki Administrative Court. According to the Applicant, the Immigration Service did not believe any part of the Applicant’s account. According to guidelines relating to the documentation of torture, for instance, the absence of scars can not justify a finding that torture did not occur. The superficial nature of the Applicant’s account and memory problems are also typical of victims of torture. According to country of origin information, torture does take place in Gambian prisons. The Applicant’s application is not manifestly unfoundedas the Applicant has produced grounds relating to non-refoulement and his claims are not clearly implausible.
The Helsinki Administrative Court rejected the appeal and considered the application to be manifestly unfoundedas specified in the decision made by the Immigration Service. The Immigration Service was entitled to refuse the Applicant’s application relating to asylum and residence permit and to give him a two year Schengen entry ban. The supplementary doctors’ testimonials are not sufficient to require reassessment of the case.
The Applicants sought leave to appeal to the Supreme Administrative Court.
Decision & reasoning:
The Supreme Administrative Court denied leave to appeal and thus gave no decision on the appeal. Based on the evidence and statements, there are no grounds to grant leave to appeal to the Supreme Administrative Court as specified in the Aliens Act, Section 196. There was no requirement to consider the substantive request as leave to appeal was denied. taking the case to be decided on by the Supreme Administrative Court, there are no grounds for this, as specified in The Aliens Act Section 196 to grant leave to appeal. Regarding the request to demand on the denial of implementation, there is no need to give a statement because leave to appeal was denied.
Outcome:
The Supreme Administrative Court refused leave to appeal and thus the case remains undecided. There was no requirement to consider the substantive request as leave to appeal was denied.
Subsequent proceedings:
After the decision made by the Supreme Administrative Court, the Applicant filed a claim to The UN Committee against Torture which accepted the claim and at the same time asked Finland to refrain from sending the Applicant back to The Gambia while the case was under consideration. The case continues.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Finland - Aliens Act - Section 196 |