Poland - Regional Administrative Court in Warsaw, 21 December 2010, V SA/Wa 383/10

Facts:

The foreign woman and her minor daughter were accorded refugee status. A few years later, the Polish Office for Foreigners received information that she had travelled to her country of origin (Chechnya in the Russian Federation) on numerous occasions. Having received information from the Border Guard that she and her daughter had crossed the border at Terespol-Brześć on four occasions, the authority initiated proceedings to revoke their refugee status. The authority notified the foreign woman of this fact and summoned her to an interview, which she ultimately did not attend. The authority interviewed a witness, who provided information on her trip to Chechnya. The authority found this circumstance sufficient to decide that she had voluntarily re-availed herself of the protection of her country of origin and on this basis it revoked the refugee status of both the foreign woman and her daughter. In her appeal, the foreign woman explained that she had crossed the border in order to visit her husband in Belarus. She accused the authority of basing its decision on information overheard by the witness and said that she was in conflict with the witness. She also requested to be interviewed as a party to the proceedings and explained her absence at the previous interview. The Polish Refugee Board upheld the decision of the first-instance authority. The foreign woman appealed against the decision of the Polish Refugee Board to the Regional Administrative Court in Warsaw.

Decision & reasoning:

The adoption of state protection within the meaning of the law means that a foreigner is protected by the state of which he is a citizen, that he is able to avail himself of this protection and that there exists no well-founded fear of persecution.

Bearing in mind the consequences of finding that a foreigner has voluntarily re-availed himself of the protection of the country of which he is a citizen, it is necessary to clarify and consider comprehensively all the circumstances of the case.

The first-instance authority acted unlawfully by preventing the party from expressing her opinion – it failed to inform the party of this possibility prior to issuing the decision and did not enable the party to be present when it took evidence from the witness. The appeal authority, in turn, acted unlawfully by failing to interview the foreign woman, as it was obliged to do under the law, and the facts of the case show that the foreign woman did not have the opportunity to express her opinion during proceedings before the first-instance authority.

When reconsidering the case, the authority should gather and examine the material evidence whilst observing the principle of the parties’ participation in the proceedings and determine whether it is necessary and justified to continue to provide international protection to the Applicant. The authority should also consider whether there are other reasons to justify a fear of persecution and whether, in the event the foreign woman’s refugee status is revoked, she will enjoy genuine protection in her country of origin.

Outcome:

The administrative decision to revoke refugee status was overturned.

Observations/comments:

The case is an example of the absence of procedural guarantees in proceedings on revocation of refugee status. The authority fully believed the testimony of the witness without clarifying all the circumstances of the case.