Hungary - Metropolitan Court, 4 February 2011, S.M.R. v. Office of Immigration and Nationality, 17.K.30.302/2010/18-II
Keywords:
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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. |
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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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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
The Iranian applicants’ asylum claim was rejected by the authorities as they were not found credible. As a result of this finding, the authorities did not consider their account in light of the country of origin information on Iran. The court quashed the decision and granted refugee status to the family reasoning that the authorities are obliged to carry out a thorough and complete fact assessment.
It was found that the contradictions in the applicants' account were not relevant from the point of view of international protection. The court also ruled that the authority is obliged to clarify misunderstandings at hearings, at the same time applicants have to be given the opportunity to justify contradictions and incoherencies in their statements.
Facts:
The applicant and his wife feared return to Iran for several reasons. They had participated in a campaign for women’s rights, for freedom of expression and the press, and against the strict criminal justice system in Iran.
The applicant had a medical certificate detailing a skull injury that he received during demonstrations at the university where he was ill-treated by the Police. His injury caused memory losses. The applicant’s wife suffered from grave depression and was undergoing medical treatment.
Further, the applicant had an adulterous relationship with a colleague who was a wedded woman. This woman’s husband was an agent of the Iranian secret service (the police) and he found out about their relationship. The applicant feared that the husband would take revenge on him and in doing so would reveal his political activities to the authorities.
Further, the applicants were linked to Christian groups that later led to their conversion to Christianity once they were outside of Iran.
After having obtained a visa to Hungary the applicants went to the Netherlands and were transferred back to Hungary under the Dublin II Regulation.
The Office of Immigration and Nationality (OIN) rejected their application due to discrepancies in their statements and did not deem the applicants credible. The OIN claimed that the applicants could not substantiate a well-founded fear since their conversion to Christianity happened outside their country of origin and consequently it was not known to the Iranian authorities. The applicant’s revealed love affair with a wedded woman could not disclose their political activities, therefore their flight story was found to be unrealistic and full of contradictions.
The OIN found that the applicants only converted to Christianity to strengthen their asylum claim. Furthermore, the authority assessed that converted Muslims in Iran are only at risk if they are missionaries or high ranking functionaries in the Church, which is not the case for the applicants. As the applicants’ credibility was fundamentally refuted the OIN deemed it a useless exercise to consider their statements against the country of origin information. The OIN found that the applicants’ political activities and religious rights were not obstructed by the Iranian authorities.
Decision & reasoning:
The Metropolitan Court quashed the decision and granted refugee status to the applicants' reasoning that the authorities are obliged to carry out a thorough and complete fact assessment. The court found that the contradictions were not relevant from the point of view of international protection.
The court also ruled that the authority is obliged to clarify misunderstandings at hearings, at the same time applicants have to be given the possibility of justifying contradictions and incoherencies in their statements. The emotional, psychological and medical conditions of the applicants have to be taken into account in order to have a full picture of the claim. It is the authority’s obligation to ensure that the applicants know of the doubts regarding their credibility before a decision is issued so they have an opportunity to respond to those doubts. Country of origin information may confirm odd details of the applicants’ statements and question otherwise plausible points, therefore, it has to be equally examined. Also, the doubts resulting from the research of country of origin information has to be shared with the applicants giving them the opportunity to deal with any issues that may arise. The OIN should have made an effort to clarify ambiguous and fragmentary parts of the applicants’ statements which were particularly problematic since the case worker dealing with the applicants’ case was replaced during the procedure and consequently the decision was written by someone that did not interview the applicants.
Due to the applicants’ medical conditions, a skull injury and depression, it would have been justified to lower the burden of proof on the applicants in accordance with paragraph 210 in the UNHCR Handbook. The court also stressed that paragraph 199 of the UNHCR Handbook should also be taken into consideration whereas:
“While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case.”
The court established that the applicants correctly referred to the UNHCR Note on the Burden and Standard of Proof in Refugee Claims that the assessment of credibility does not require all minor details (exact dates), small discrepancies that are not related to the matter should not be taken into account. The court stated that the applicants’ statements were not contradictory but complementary from two different points of view. The court assessed that even if it is rarely applied, Iranian citizens charged with apostasy face the death penalty or life imprisonment. The court found that the future persecution of the applicants can be substantiated upon their return to Iran.
The applicant, his wife and minor children were granted refugee status on the basis of persecution on the ground of their political opinion (participation in anti-Islamism campaigns) and religion (conversion).
Outcome:
The decision of the OIN was quashed and the applicants were recognised as refugees.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Hungary - Act LXXX of 2007 on Asylum - Art 12 |
| Hungary - Act LXXX of 2007 on Asylum - Art 45 |