Greece - Administrative Court of Appeal, 1 March 2011, JA v Minister for Citizen Protection, 91/2011
| Country of Decision: | Greece |
| Country of applicant: | Palestinian Territory |
| Court name: | Athens Administrative Court of Appeal, Chamber F |
| Date of decision: | 01-03-2011 |
| Citation: | 91/2011 |
| Additional citation: | http://www.dsanet.gr/1024x768Auth.htm |
Keywords:
| Keywords |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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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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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. 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. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
This case concerned service of the initial negative decision against an asylum application where the notice was served on the foreign applicant asylum seeker without specifying the language in which the applicant was informed of its content. The court rejected an application for suspensive effect of the decision rejecting the asylum application in view of the pleas used by the applicant – of Palestinian origin – that he left his country for economic reasons, since there is no evidence that there is a risk of persecution should he return to Palestine, nor have any of the conditions for asylum on humanitarian grounds been met. The possible disruption to the lifestyle the applicant has created for himself whilst working in Greece does not constitute a reason to suspend any of the acts which form part of the asylum application examination procedure.
Facts:
The applicant, who declared himself to be of undefined Palestinian origin, left his country on 25.05.2007 and, having crossed Turkey, he illegally entered Greece on 05.06.2007. On 03.08.2007 he submitted an application for asylum, citing economic grounds. His application was rejected by the Chief of the Hellenic Police on the grounds that the objective and subjective elements of a well-founded fear of persecution do not apply in his case, and there is no evidence that he suffered or will suffer individual persecution by his country's authorities. This decision was served on the applicant on the 08.09.2007 and no appeal was lodged within the allowed time limit. The appeal lodged on 13.08.08 was implicitly rejected by the General Secretary of the Ministry of Interior. On 17.07.2009 the applicant appealed to the Council of State to give suspensive effect to implementation of both the 05.09.2007 decision by the Head of the Security and Order Branch of the Hellenic Police Command, which was the first instance rejection of his application for asylum, and also of the implicit rejection by the General Secretary of the Ministry of Interior of his 13.08.2008 appeal. He petitioned for those same acts to be annulled. In that petition the applicant claimed, inter alia, that the service of the notice rejecting his asylum application was not lawful and, specifically, that he was not informed of its contents in a language he understands, in violation of Article 3(3) of Presidential Decree 61/1999; furthermore, that decision was delivered to the applicant along with the Asylum Seeker Card (pink card) of 3-8-2007 (valid from 03/08/2007 until 03/02/2008). The delivery of the above mentioned card resulted in the applicant having good reasons to believe that he was under no obligation to proceed to any action until his asylum seeker card's (pink card) expiration date. As soon as a lawyer told the applicant why his application to renew the said permit had been rejected, he submitted the appeal of 13.08.08 against the 05.09.2007 decision by the Head of the Security and Order Branch of the Hellenic Police Command which was a first instance rejection of his application to be granted asylum. The case was referred to the Administrative Appeal Court of Athens by the Council of State, to which the appeal had initially been submitted.
Decision & reasoning:
A) As ruled by the provisions of Article 1A(2) of the 1951 Convention as applicable, an alien who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity, that there are specific facts which cause him to have a well-founded fear of persecution for reasons of race, religion, nationality, social group or political opinion. If, in the proceedings before the Administration, the person concerned has not submitted any claims which are substantive in the above sense, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited, but these do not establish grounds for protection status under the 1951 Convention, then there is no obligation to give specific reasons for rejecting the application for asylum.
B) The contested act of the Head of the Security and Order Branch of the Hellenic Police Command was served on the applicant on 08.09.2007 and the relevant proof of service records that the applicant was informed “in a language which he understands” about the content of the act and his right to lodge an appeal against it within 10 days. However, in view of the fact that the language in which the applicant was informed about the act's content was not specified, the application for annulment which he submitted on 10.07.2009 was not manifestly inadmissible as being clearly out of time, nor was it inadmissible because he had not previously submitted an administrative appeal within the prescribed time, so there is no case for rejecting the appeal in question for those reasons pursuant to Article 52(7) of Presidential Decree 18/1989.
C) When considering its judgment the Court took into consideration the fact that the applicant, during his initial examination, stated via an interpreter that he left his country for economic reasons (seeking employment); in other words, for reasons which do not justify offering refugee status or protection on humanitarian grounds. However, in the application in question the applicant claims, vaguely, that his case fulfils the conditions set down by the 1951 Convention and the 1967 New York Protocol for determining refugee status. Thus, there is no clear risk of the applicant being persecuted if he returns to Palestine, and no facts are presented regarding humanitarian status, so there is no case for giving suspensive effect on those grounds. Furthermore, possible disruption to the standard of living the applicant achieved whilst working in Greece is also not a reason for giving suspensive effect to an action which, as in this case, was not served in compliance with common law relating to aliens, but which forms part of the asylum application examination procedure.
Outcome:
The application for suspensive effect was rejected given that the invoked grounds for annulment had no clear basis.
Observations/comments:
Athens Administrative Court of Appeal, Chamber F Annulment Formation in Council (2011)
(Judges: Dimitroula Mavrommati, President of the Administrative Court of Appeal; Georgios Skouloudis and Eirini Nanou-Skenderi, Appeal Court Judges. Rapporteur: G. Skouloudis)