Belgium – Council for Alien Law Litigation, 7 May 2008, Nr. 10.947
Keywords:
| Keywords |
|
Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
|
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." |
|
Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
|
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. |
Headnote:
This case concerned state persecution. The CALL held that when the agents of persecution are national authorities, there is a strong presumption that protection within the country of origin is not accessible, as the authorities are able to pursue a person throughout the entire territory under their control.
Facts:
The applicant, of Rwandan nationality and Hutu ethnic origin, lodged an application for asylum based on a fear of persecution on political grounds. The applicant’s husband had held positions within the ‘Mouvement Révolutionnaire National pour le Dévelopement’ (MRND). She stated that soldiers had killed her husband in 1997 and that she and other members of her family were regularly persecuted. In Belgium she joined her son, who had been granted refugee status in 2004. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) , however, found a contradiction in the dates of the disappearance of her children and highlighted that the risk he faced was localised and that she would be able to live elsewhere in Rwanda. The CGRS also found that based on the account she gave about her travel to Belgium, the asylum claim had been lodged too late. The CGRS therefore refused the application, against which the applicant lodged an appeal before the CALL.
Decision & reasoning:
(1) Firstly the CALL noted that the alleged persecution was not called into question by the CGRS, who had also not contested that the application was based on the same facts described by her son, who was granted refugee status in 2004. Referring to Art 4.4. of the Qualification Directive, the CALL concluded that there was no doubt that the applicant had been persecuted and that the question now was whether or not there were good reasons to believe that such persecution would not be repeated. The CALL found that, considering the persecution that several members of her family had been subject to, some of whom had been killed or had disappeared, the applicant could legitimately fear to be subject to the same type of harassment in case of a return to her country.
(2) Concerning the possibility of finding protection within the country of origin, the CALL repeated that “when the agents of persecution are national authorities, there is a strong presumption that protection within the country, which coincides with similar concepts such as ‘internal protection alternative’ or ‘possibility of internal flight or relocation’, is not accessible, as the authorities are able to pursue a person throughout the entire territory under their control.” In the case at hand, the CALL found that the CGRS was wrong in concluding that this presumption could be reversed by the single fact that the applicant managed to temporarily escape from the persecution by moving within the country.
(3) Finally, the CALL defined the applicant’s fear as a fear of persecution on the basis of her membership of a particular social group, i.e. the group that is formed by the family members of an executive of the regime that was toppled by the current authorities.
Outcome:
The CALL reversed the decision of the CGRS and granted refugee status to the applicant.