Poland - Supreme Administrative Court of Poland, 18 February 2009, II OSK 247/08
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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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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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The accusation of a breach of the individual's right to information about the rules and procedures of the refugee status proceedings and about the rights and obligations of the applicant was unfounded, as the application form for refugee status contained this information and was signed by the individual in question to acknowledge that she had been duly informed.
For refugee status to be recognised on grounds of a risk of persecution by non-state actors, it needs to be shown that this risk is linked to persecution grounds listed in the Convention.
'Women subject to domestic violence' do not constitute a social group. The assessment of whether women in Russia constitute a social group within the meaning of the Convention requires an assessment of the actual situation in the country of origin.
Facts:
In 2005, the husband of the foreignor applied for refugee status; this application also covered the foreignor and her children. In 2006, after refugee status was finally refused, the foreignor separately applied for refugee status in Poland; this application also covered her children. She stated in her application that she was living in constant terror, as her husband beat her, threatened to take the children away, and threatened to kill her; she stated also that he was a member of an organised criminal gang.
The first instance authority - then the Head of the Office for Repatriation and Foreigners - refused to grant refugee status, and the Polish Council for Refugees (the second instance authority) upheld this decision.
The foreignor appealed against the decision. The Regional Administrative Court in Warsaw dismissed the appeal on the grounds that the authorities in question had rightly found that the application had been submitted for economic and personal reasons ('unhealthy marriage'). This was further appealed to the Supreme Administrative Court.
Decision & reasoning:
The accusation that the individual had not been provided with correct information (i.e. in her native language) about the rules and procedures of the refugee status proceedings was unfounded. This information was supposed be provided in a language that the foreignor understood and contain details of the rules and procedures of the refugee status proceedings, the individual's rights and obligations, the legal effects of failure to fulfil these obligations, and organisations that help refugees. During the course of the proceedings, the foreignor was duly familiarised with the rules governing the proceedings. The applicant signed the application for refugee status, indicating that she had been duly informed, and furthermore declared that she understood Polish sufficiently to communicate freely. The design of the official application form for refugee status, which contains the necessary information (the obligation to inform the authority of a change of address and the effects of failing to do so and also the formal requirements of the application procedure and what happens if these are not met), also shows that the statutory obligation to inform the foreignor was fulfilled. Furthermore, all of the headings on the application form are in three languages, including Russian, as are the rules and procedures of the refugee status proceedings. It is therefore presumed that, if the applicant signs the declaration to the effect that she has been familiarised, this means she has been comprehensively informed about matters key to the proceedings. Although it is perfectly logical for the applicant to say that signing a declaration does not mean that she understood what she had been informed of, this does not mean, in turn, that her rights have been breached.
For an individual to be granted refugee status due to the risk of persecution by non-state actors, it must be shown that this risk is linked to persecution grounds listed in the Convention. This test is met (a) if there is a real risk of persecution by a non-state actor on grounds specified in the Convention regardless of why the applicant is not being protected by the state; (b) if the risk of persecution by the non-state actor is not linked to the Convention, but inability or refusal of the state to provide protection is indeed linked to the Convention. In other words, 'if the actor permitting the persecution is not a public authority, refugee status may be granted only if the fear of persecution has arisen on grounds listed in Article 1A(2) of the Convention relating to the Status of Refugees but also if these grounds mean that the foreignor cannot obtain protection in the country of origin'.
The conclusion cannot be drawn that 'women subject to domestic violence' are a social group, as this group must be defined without reference to the fear of persecution. Assessing whether women in Russia form a social group within the meaning of the Convention requires an analysis of the prevailing situation. In an assessment of whether the fear is well-founded, the conditions in the country of origin cannot be disregarded. The lack of any findings in this regard is all the more egregious as the applicant said during the proceedings that she had no access to organisations that support women, whilst the state authorities tolerate domestic violence.
Outcome:
The judgment of the Regional Administrative Court in Warsaw was overturned; the judgment by the Polish Council for Refugees was overturned.
Observations/comments:
In this judgment, the realisation of the foreignor’s right to be informed during the refugee proceedings was interpreted narrowly as an obligation on the part of the authority to ensure that information was provided in a language the foreignor understood in the application form for refugee status. The judgment concerns the question of persecution by non-state actors and the role of information about the country of origin in defining a particular social group.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA |
| United States - Matter of Acosta (Interim Decision 2986, March 1, 1985) |
| CJEU - C-80/86, Kolpinghuis Nijmegen BV |
| Poland - Supreme Administrative Court of Poland, 8 May 2008, OSK 237/07 |
Other sources:
Aguirre Cervantes v INS, 21 March 2001.
Report by Amnesty International on violence against women in the Russian Federation.