Slovakia - Migration Office, 12 May 2011, M.H. v Ministry of the Interior of the Slovak Republic, 9 Saz/37/2010-74

Facts:

The Appellant applied for asylum on 14 July 2005 out of fear for his life and on economic grounds. Under a lawful decision of the Respondent of 30 August 2005, asylum was not granted and the prohibition on deportation was held not to apply to him.

After filing a new asylum application, the Appellant was, on 26 May 2009, provided with subsidiary protection for a period of one year, since, according to the Respondent’s reasoning, the Appellant met the preconditions for such a provision.

On 15 March 2010, the Appellant applied to the Respondent for an extension of that subsidiary protection on the grounds that the reasons for the provision thereof persisted, as there was reason to believe that he would be exposed to a serious threat of harm in the event of a return to his country of origin. Under the contested decision of 10 June 2010, the Respondent, pursuant to Section 15b(1)(b) on the basis of Section 13c(2)(d) and in accordance with Section 52(2) of the Asylum Act, set aside the Appellant‘s subsidiary protection on grounds of the security interests of the Slovak Republic. Apart from copies of the previous decisions, or records of interviews conducted in earlier proceedings, and a copy of the Appellant’s foreign passport, the file contained no other relevant documents.

Decision & reasoning:

The Court reviewed the Respondent‘s contested decision in the context of the Appellant’s complaint, as well as in the context of Supreme Court Resolution No. 10 Sža/2/2011 of 16 February 2011, which set aside the decision of 27 October 2010 issued by the local court and referred the case back to the local court.

The Court held that the objection that “the Respondent’s contested decision is not properly reasoned, since it fails to explain why the security interests of the Slovak Republic are involved in this case, and for this reason it could not be reviewed” is not well-founded. The Respondent withdrew the subsidiary protection provided to the Appellant under Section 15b(1)(b) on the basis of Section 13c(2)(d) of the Asylum Act, and thus on the ground that the Appellant represented a danger to the security interests of the Slovak Republic. In accordance with Section 52(2) of the Asylum Act, the Respondent stated in the reasoning of the decision only that the security interests of the Slovak Republic were at issue. The reason for such a wording in the legal measure in question (Section 52(2) of the Asylum Act) is clear – it is an attempt to prevent the publication of sources of information showing that a certain person represents a danger to the security of the Slovak Republic. If the reasoning of the administrative decision, which by its nature is a public document, contained a description of the facts found, it would lead to the source of the information and method of obtaining it being revealed thus frustrating the operations of the relevant state authorities in a particular case and in general revealling the procedures used to detect actions that might threaten the constitutional system, territorial integrity, sovereignty or security of the Slovak Republic resulting, for example, in activities by foreign intelligence services or organised crime and terrorism, which might seriously threaten or undermine the economic interests of the Slovak Republic.

After reviewing the contested decision, the Court concluded that the objection that “the decision was based on facts that were contrary to the contents of the file and that the Respondent’s procedure when assessing the Appellant’s application for an extension of subsidiary protection was contrary to the provisions of Section 3 of the Administrative Procedure Rules“ was well-founded, that the Respondent had failed to consistently follow the relevant cited procedural provisions of the Administrative Procedure Rules and it was therefore necessary to set the Respondent’s contested decision aside and refer the case back to the Respondent. It must be said that the Respondent’s statement in the decision that the Appellant represents a danger to the security of the Slovak Republic should have been reached on the basis of definite information (findings of fact). The source of such information should be, in the opinion of the Court, mainly the statements of the Slovak Information Service (Section 19a(7) of the Asylum Act). There are also, for example, relevant documents of other competent state authorities, and the Respondent’s own findings.

An examination of the contents of the Respondent’s file ČAS: MU-131/PO-Ž-2010 showed that it contained no documents (report, statement, background information, volumn of documents or evidence) on the basis of which it might be stated that the Respondent had concluded with reference to the contents thereof that the Appellant represented a danger to the security of the Slovak Republic, or that another competent state authority had reached such a conclusion.

With reference to the above, only two conclusions can be drawn: (1) Either the Respondent possessed no information that might support its statement that the Appellant represented a danger to the security of the Slovak Republic, which the Court did not, however, accept because the Respondent is a public authority which it is assumed by law performs its tasks in the area of decision-making in cases of asylum, subsidiary protection and temporary protection in accordance with the law, or (2) it had such information but did not place it in the relevant file of the Appellant. The Respondent stated in the proceedings before the Court that it had information from the Slovak Information Service, but in view of the nature of the information it did not form part of the file.

In any case, however, the Respondent concluded that the Appellant represented a danger to the security of the Slovak Republic, regardless of the fact that there was no background information in the administrative file on the basis of which it might have reached such a conclusion (valid premise). This was clearly a situation where the findings of fact (that the Appellant represented a danger to the security of the Slovak Republic) were in conflict with the contents of the file. Such a situation constitutes a ground for setting aside a contested decision under the provisions of Section 250j(2) of the Civil Procedure Rules.

If the Respondent possessed information on the basis of which it had reached a valid premise according to which the Appellant represented a danger to the security of the Slovak Republic, this must exist in a form (usually written) which would allow the parties to the proceedings, their representatives or the reviewing authority to familiarise themselves with their contents. If, however, the Respondent, despite the existence of this information, failed to place it in the administrative file, such a file must be regarded as incomplete, which constitutes a ground for setting aside a contested decision under the provisions of Section 250j(3) of the Civil Procedure Code.

Concerning the Respondent’s proposal that the Court request the information which it had had from the Slovak Information Service regarding the case and which it failed to place in the file, the Court noted that it could not comply with such a proposal to take additional evidence. It considered that, with regard to the contents of the administrative file (ČAS: MU-131/PO-Ž-201), such a procedure would completely supplant the Respondent’s proceedings in the administrative (asylum) proceedings of first instance, and would at the same time deny the Appellant (or his representative) his acknowledged procedural right as a party to the administrative proceedings of first instance. In other matters, the Court referred to the above reasoning of this decision.

In the subsequent proceedings, the task of the Respondent will be to consider again the Appellant’s request for an extension of subsidiary protection within the meaning of the Asylum Act or the Administrative Procedure Rules. The information serving to substantiate the facts must be placed in the administrative file, and in case this involves materials subject to a special regime (for example, within the meaning of Act No 215/2004 Coll. on the protection of secret information and amending certain other acts), to ensure that it is handled in accordance with the relevant legislation.

Outcome:

The Regional Court in Bratislava set aside the contested decision of the Respondent, and referred the case back to the Respondent.