Hungary - Metropolitan Court, 17 January 2012, M.A.A. v Office of Immigration and Nationality (OIN), 6.K.34663/2009/36
Keywords:
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
The Syrian Kurdish Applicant has been persecuted and tortured for his nationality and imputed political opinion.
Facts:
The Applicant was arrested on the Kurdish celebration of Newroz by the Syrian authorities. During his detention lasting over 6 months, he was severely tortured as is verified by his psychological report. His passport was revoked by the Syrian authorities, his name was added to a so-called ‘Red List’ and he was threatened. Finally, due to the wealth of his family, he was released thanks to a financial bribe.
Decision & reasoning:
According to the OIN, the Applicant`s arrest did not occur for any of the five reasons specified in the Geneva Convention. He did not refer to persecution, thus his application was rejected and not even the case of non-refoulment was upheld. According to the OIN, the atrocity was a one-time incident, which does not qualify as persecution. The OIN did not appreciate that the Applicant, outside his country of origin, attended a sympathy demonstration for the Kurdish in Austria. The escalation of the Syrian civil war in the meantime was also not considered when making the decision. The decision stated that even though the Kurds are subject to discrimination, it does not reach the level of persecution.
During the course of the court proceedings and by the end of the hearing, the OIN amended its standpoint so that it would recognise non-refoulement in the case of all Syrian applicants.
The Court found that the decision was unlawful and several points of it were contrary to the ethos of the right of asylum. The Home Office of the United Kingdom reported that the situation of the Syrian Kurds was problematic – leaders of the political parties were imprisoned, and were even restricted from practicing cultural activities. The Syrian Human Rights Committee confirmed the statement of the Applicant. In 2008, the situation deteriorated in an unprecedented way, ever since when even reciting Kurdish poems or wearing national costumes have been strictly forbidden. Furthermore, based on the available country of origin information, the risk of ill-treatment during the long detentions without trial is very high. Based on the above, the decision according to which the Applicant`s arrest and the intimidating actions of the authorities are not relevant to the five asylum-related grounds specified in the Geneva Convention, is mistaken. The Court held that the Applicant was persecuted because of his nationality, i.e. a reason specified in the Geneva Convention. Any Kurdish cultural act is considered as amounting to a political opinion by the Syrian authorities, thus the category of (imputed) political opinion can also be applied to the case (the perception of the Syrian authorities at the time of the arrest and imprisonment of the Applicant).
Moreover, a sole occasion of atrocity can constitute an act of persecution that is not defined by the frequency of its occurrence. The severity of what happened to the Applicant made it clear that the events are to be regarded as acts of persecution as they seriously breached the Applicant’s fundamental human rights (right to life and physical integrity).
The Court held that the main deficiency of the original proceedings was that the OIN failed both to review and to include the photo made at the Austrian demonstration in its final conclusion.
The Court concluded that during the hearing any previous contrary statements were made unambiguous by the Applicant, thus his credibility was approved.
Outcome:
The Court recognised the Applicant`s refugee status.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Report of the Hungarian Embassy in Damascus, 2009 Human Rights Report by the US Department of State, Bureau of Democracy, Human Rights and Labour.