Poland - Polish Refugee Board, 8 September 2010, RdU-439-1/S/10
| Country of Decision: | Poland |
| Court name: | Polish Refugee Board (second-instance administrative authority) |
| Date of decision: | 08-09-2010 |
| Citation: | RdU-439-1/S/10 |
Keywords:
| 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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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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Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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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:
Although gender based persecution is not expressly mentioned among the reasons for recognising refugee status, the UNHCR Guidelines on claims to refugee status in cases involving gender based persecution, as cited by the Applicant, indicate that gender based persecution falls within the broader category of persecution for reasons of membership of a particular social group.
Although physical persons acting on their own behalf do not constitute typical perpetrators of persecution, they may be regarded as actors of persecution within the meaning of the Convention in cases where public authorities are unable or unwilling to protect an individual against their activities.
Facts:
S., who comes from an African country, submitted an application for refugee status in Poland, explaining that her father had sold her to an Egyptian citizen. The Applicant raised the matter with the appropriate authorities in her country of origin but no official action was taken. After arriving in Egypt she was subjected to various forms of violence, including sexual violence. In the end she managed to escape and travel to Europe. In the proceedings she stated that she feared violence from members of her family for this reason.
The Polish Office for Foreigners refused to grant the Applicant refugee status, provide subsidiary protection or grant a permit for tolerated stay, arguing that she had not expressed a fear of persecution for the reasons laid down in the Convention and that she did not need international protection. S. lodged an appeal with the Polish Refugee Board, which overturned the decision and referred it to the first-instance authority for re-examination.
Decision & reasoning:
The Polish Refugee Board came to the conclusion that the decision of the Office for Foreigners was incorrect. It therefore overturned the decision and referred it for re-examination.
The Board pointed out that the main factor determining the recognition of refugee status is whether the Applicant has a well-founded fear of persecution. Fear is a subjective feeling that is impossible to verify. For this reason, when the Applicant claims that he feels fear, the centre of gravity must shift towards the objective circumstances, i.e., whether the foreigner has objective reasons to feel at risk.
In the Board’s opinion, the fear felt by S. should be regarded as real. The Board also indicated that there was no doubt that the Applicant had been the victim of human trafficking, which was confirmed by the Border Guard, who placed her under a programme designed to support and protect victims of human trafficking. Furthermore, the Board stated that although gender based persecution is not expressly mentioned among the reasons for according refugee status, the UNHCR Guidelines on claims to refugee status in cases involving gender based persecution, as cited by the Applicant, indicate that gender based persecution falls within the broader category of persecution for reasons of membership of a particular social group.
The Board also emphasised that although physical persons acting on their own behalf do not constitute typical perpetrators of persecution, they may be regarded as actors of persecution within the meaning of the Convention in cases where public authorities are unable or unwilling to protect an individual against their activities.
In the Board’s opinion, the first-instance authority had not examined to a sufficient degree whether the Applicant, as a victim of human trafficking, would in the event of her return enjoy adequate protection, in particular protection against members of her own family and protection against “vendettas” and “honour killings”. Nor did the first-instance authority consider the consequences of S. having changed her religion during her stay in Poland. For these reasons it was necessary to refer the case for re-examination.
Outcome:
The Polish Refugee Board overturned the decision appealed against and referred it to the first-instance authority for re-examination.
Subsequent proceedings:
After re-examination of the case by the Office for Foreigners, S. was accorded refugee status.
Observations/comments:
This is the first decision to indicate that the victims of human trafficking may be eligible for international protection in the form of refugee status, and that the persecution which they are at risk of in the form of gender based persecution is covered by persecution for reasons of membership of a particular social group.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Poland - Supreme Administrative Court,18 March 2002, VSA 3685/00 |
Other sources:
UNHCR Guidelines on International Protection No. 1: Gender-Related Persecution.