Poland - Polish Refugee Board, 29 August 2013, RdU-246-1/S/13
Keywords:
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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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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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
Headnote:
This was a decision of the Polish Refugee Board of 29 August 2013 to uphold that part of the decision of the Head of the Polish Office for Foreigners which concerned refusal to accord refugee status and to overturn the remainder of the decision as well as to grant subsidiary protection.
The results of the linguistic analysis carried out by an external expert company should be assessed in the context of all the evidence gathered in the case, taking into account the principle of the benefit of doubt, also as regards establishing the country of origin.
Certain inaccuracies in the detail actually lend credibility to the testimony. This is evident particularly if one takes into account the fact that the foreign woman is a simple person without any education.
Facts:
The refugee status proceedings in this case lasted over two years. The Head of the Polish Office for Foreigners questioned the foreign woman’s claim that she is from Darfur in Sudan. It did so on the basis of a pioneering method used to establish the country of origin of foreigners whose identity is unconfirmed, i.e. on the basis of an expert study carried out by the Swedish company Verified AB. The company specialises in determining what region a foreigner is from on the basis of a linguistic analysis and an assessment of their knowledge of the region’s topography.
The final report presented by the company shows that the foreign woman speaks a variant of English that is “probably inconsistent” with her declared country of origin, i.e. Sudan. The variant of Swahili spoken by the foreign woman was likewise seen as “probably consistent” with the Tanzanian rather than the Sudanese variant of this language. The external expert company also found that the foreign woman did not know the topography of the region where she claimed she had lived.When asked to list the towns in the region, aside from towns in Sudan, she also listed towns situated in Chad.
It was on this basis that the Head of the Polish Office for Foreigners excluded the possibility that the foreign woman was from Sudan and instead assumed her country of origin to be either Kenya or Tanzania. The Head of the Polish Office for Foreigners therefore refused the foreign woman all forms of protection and decided to deport her. The appeal authority overturned part of the decision appealed against and granted the foreign woman subsidiary protection.
Decision & reasoning:
There are insufficient grounds in this case to question the foreign woman’s claim that she is from Sudan. The results of the linguistic analysis should be assessed in the context of all the evidence gathered in the case, taking into account the principle of the benefit of doubt. An important consideration is the fact that the she was brought up by a Tanzanian family and that she spent time in a centre run by missionaries, where people from various countries lived. This explains the fact that the foreign woman speaks a language that points to Tanzanian origins and it cannot justify questioning her claim that she is from Sudan.
Moreover, the fact that the foreign woman listed towns located in Sudan as well as in Chad cannot be interpreted to her disadvantage, since she herself testified that she lived in a part of Sudan that borders Chad. The specific nature of the borders of African countries and the Applicant’s lack of education should be taken into account.
Certain inaccuracies in the detail actually lend credibility to the testimony. This is evident particularly if one takes into account the fact that the foreign woman is a simple person without any education.
Outcome:
Subsidiary protection granted to the foreign woman.
Observations/comments:
The expert opinion is only one of the pieces of evidence in the case, but the first-instance authority saw it as decisive and ignored the foreign woman’s assertions, which remained consistent throughout the drawn-out proceedings. Evidence in the form of an expert opinion, particularly as it contains such ambiguous findings, cannot take precedence over the foreign woman’s testimony.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - N v United Kingdom (Application no. 26565/05) |
| ECtHR - D v. United Kingdom, Application No. 30240/96 (UP) |