Slovenia - Supreme Court of the Republic of Slovenia, 18 October 2012, I Up 471/2012
| Country of Decision: | Slovenia |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Court of the Republic of Slovenia |
| Date of decision: | 18-10-2012 |
| Citation: | I Up 471/2012 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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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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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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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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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Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
When assessing the application for international protection the Ministry of Interior (MI) did not take into account the Applicant’s youth, lack of education and background. The MI did not conduct the procedure and pose questions in a manner that was suitable to the Applicant’s age and personality.
The country of origin information that the Applicant submitted only in his appeal against the decision should be accepted as this is generally available information that MI could have obtained on its own.
Facts:
The case involved an Applicant who was a minor, had been living without his parents since the age of 10, never attended school and was illiterate. The MI annulled his application forinternational protection, amongst other things, because it considered that the Applicant had not made a genuine effort to substantiate his application, was unwilling to participate in the proceedings and his statements were incoherent and implausible.
The Administrative Court annulled the decision of the Ministry of the Interior to reject the application for international protection and returned the case for reconsideration, upon which the MI appealed against the judgment of the Administrative Court.
In the appeal, the MI argued thatthe Courtdecision should not have taken into consideration the country of origin information that the Applicant submitted only in his appeal. Paragraph 3, Article 20 of the General Administrative Procedure Actstipulates thatthe parties in an administrative procedure may not state facts and provide evidence, if they were given the opportunity to state these facts and provide evidence in the procedure that took place prior to the administrative decision.
Decision & reasoning:
The Supreme Court found that in its decision making process the Ministry of the Interior did not take into account the Applicant’s youth (10-12 years) at the time of the events that led to his departure from the country of origin, nor did it take into account that he was a minor when applying for international protection (17 years). The MI also failed to take into account the Applicant's general lack of education (illiterate, no formal education), his background, and the circumstances in which he allegedly found himself in this specific environment as a 10-12 year old child. The fact that the Applicant answered briefly and was therefore asked sub-questions cannot be attributed solely and exclusively to his unwillingness to participate in the process. This could be due to his general manner of expression, or his ability to give statements, however the Respondent failed to define this in his decision. The inconsistencies revealed in the Applicant’s statements as to when the individual events took place and other issues related to the time and dates as well as amounts and prices have not been sufficiently evaluated in terms of the Applicant's capability in relation to time perception and calculation skills.
The MI also failed to conduct the proceedings and pose questions in a manner that would suit the Applicant’s personality and age. It is true that in the application for international protection the main burden of proof lies on the Applicant applying for international protection, however the authorities conducting the procedure also have the duty to ascertain the actual circumstances. According to Article 7(3) of the International Protection Act, the authorities must allow the Applicant to protect and enforce his rights emerging from this Act in the easiest way possible; they also have to ensure that the Applicant’s ignorance and lack of knowledge does not violate his rights. Merely fulfilling the formal conditions (merely acquainting the Applicant with his rights in written form, appointing a guardian, issuing a general warning when receiving the application stating that the Applicant needs to give all data with which he attempts to support his application independently, convincingly, accurately and truthfully etc.) may not be sufficient in certain cases (especially when minors or uneducated individuals are involved); in such cases it is necessary to ascertain whether the Applicant truthfully understands the importance of his behaviour, actions and statements during the procedure for obtaining international protection.
The Supreme Court also disagreed with the Ministry of Interior’s objection that the court of first instance should not have considered the country of origin information that the Applicant provided only in his appeal. This objection should be rejected already on the basis that it deals with generally available information, which was available also to the MI. On the other hand, this suggests or confirms that the MI did not fully acquire all relevant general and specific country of origin information that it should have acquired in order to verify the Applicant's statements.
Outcome:
The Supreme Court rejected the appeal and confirmed the ruling of the court of first instance.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act) |
| Slovenia - Zakon o splošnem upravnem postopku (ZUP) (General Administrative Procedure Act ) |