Germany – Administrative Court Magdeburg, 26 June 2017, 5 A61/17 MD
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court Magdeburg (Judge Furthmann) |
| Date of decision: | 26-06-2017 |
| Citation: | 5A61/17MD |
Keywords:
| Keywords |
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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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. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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 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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
Headnote:
1. Afghans who have worked for international aid organisations are particularly endangered of becoming victims of political persecution by non-state actors (e.g. Taliban) according to § 3 (1) AsylG in case of a return to Afghanistan.
2. There is no internal protection for these people. They cannot escape the clutches of non-state actors as these groups have a wide (information) network at their disposal and an increased interest in persons who have worked for international aid organisations.
Facts:
The plaintiff, an Afghan citizen, belonging to the peoples of Tajiks and of Muslim faith, entered Germany on the 18th of June, 2015 and lodged an application for (political) asylum on the 3rd of August, 2015. During his interview he stated that he has worked for the UNHCR since 2002, being responsible for the transport of people. Several times he was spoken to by the Hezb-i-Islami group who asked him to cooperate with them, in particular giving out information concerning the transport of foreigners. Since he did not react to this request, he received several threating calls and letters, including murder threats addressed to him and his family. Also, someone shot at the car whilst the plaintiff and his family were driving back home from a friend’s house.
On the 26th of January, 2017 his asylum claim was rejected and he was requested to leave Germany.
The grounds for the rejection were:
- On leaving the country, the applicant was indeed (previously) persecuted and this constituted a valid reason to establish a fear of persecution in respect of § 3 (1) AsylG at the time of the interview. However, due to the fact that the Hezb-i-Islami group has signed a peace agreement, it can be assumed that there is no future threat of persecution by the Hezb-iIslami group.
- With regard to the applicant’s fear of future persecution by the Taliban, he could not prove a fear of an individual persecution, rather he is exposed - just as the entire Afghan population - to a general threating situation.
On the 3rd of February 2017, the applicant brought an action against this decision. In the oral hearing, the plaintiff presented further and new threatening letters he received from the “Mujaheddin” and the Taliban.
Decision & reasoning:
The action is successful. The plaintiff is entitled to refugee status according to § 3 (1) AsylG.
The consideration made by the Federal Office for Migration and Refugees (BAMF) on the previous persecution of the plaintiff that falls within the scope of § 3 (1) AsylG was correct. However, the Federal Office was wrong to conclude that there will be no future threat of persecution when returning to Afghanistan. On the contrary, with considerable probability the plaintiff is at risk of future acts of persecution by non-state actors, which also constitutes a “political” persecution in the sense of § 3 AsylG.
When examining the grounds of persecution, it is sufficient if these characteristics are only attributed to the asylum seeker by his or her persecutor (principle of “imputed political opinion”). People who have worked for international aid organisations belong to the target group of non-state and anti-government groups and, therefore, are particularly at risk of becoming a victim of assaults, such as kidnapping or killing. As has been proved, the Islamic Republic of Afghanistan is not capable of granting adequate protection against the persecution by non-state actors. Also, when considering the possibility of internal protection, the wide information network by the Taliban has to be taken into account. These findings by the court are underlined by various reports as well as by the strong interest of the Taliban to come in contact with the plaintiff due to his work for the UNCHR. Also, the court refers to a recorded increase in attacks by the Taliban on people who have worked for international aid organisations since 2015 and to the fact that his family continues to receive threatening letters, also by the Taliban, addressed to the plaintiff. As a result, the court claims that on returning to Afghanistan, the plaintiff will not be able to avoid potential attacks by the Taliban.
Outcome:
The action is fully successful. The plaintiff is to be granted refugee status according to § 3 (1) AslyG.
Observations/comments:
This case summary was written by MerleBannach.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 20 February 2013, 10 C 23.12 |