Belgium – Council for Alien Law Litigation, 15 March 2010, Nr. 40.136
Belgium – Council for Alien Law Litigation, 15 March 2010, Nr. 40.136
Keywords:
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
The CALL held that “new elements” in the sense of Art 51/8 of the Belgian Aliens Law (please see comments section below) should fulfil three conditions:
(1) be new, i.e. not have been subject to examination in an earlier procedure;
(1) be new, i.e. not have been subject to examination in an earlier procedure;
(2) relate to facts or situations that occurred after the last phase of the procedure in which the applicant could have submitted them; and
(3) be relevant, i.e. contain serious indications of the existence of a well-founded fear or a real risk of serious harm.
Regarding the third condition, the CALL added that this appreciation is connected to the probative value, relevance and impact on the applicant’s credibility.
Facts:
In January 2009, the applicant, a Pakistani national, filed a first asylum application. In July 2009 the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) made a negative decision. In September 2009 the applicant filed a second asylum application and in January 2010 the Immigration Department made the decision not to consider it. The Immigration Department ruled that the elements that the applicant had brought forward in his second application did not constitute “new elements” in the sense of Art 51/8 of the Belgian Aliens Law. The applicant lodged an appeal against this decision, both for suspension of its execution and for its annulment.
Decision & reasoning:
The applicant argued before the CALL that the Immigration Department had crossed the boundaries of its competence. The applicant alleged that the Immigration Department had not, in the assessment of the newly produced elements, limited itself to checking whether they were “new” or not, but had also assessed their probative value, relevance and impact on the applicant’s credibility. The applicant had submitted a number of testimonies from people at whose residences he had gone into hiding, in order to demonstrate that – contrary to what the CGRS had ruled – he had no internal flight alternative. The Immigration Department disregarded those testimonies stating that they had a “solicited” character. With regard to other documents, the Immigration Department ruled that they were mere copies and that the probative value of such documents was minimal as their authenticity could not be checked. The applicant also argued that the reasons of the Immigration Department, in stating that the documents that the applicant had submitted were not of a nature to alter the assessment of the CGRS in a positive way, were pre-empting the CGRS’ judgment, as the CGRS is the only body competent to make such an assessment on the merits.
However, the CALL ruled differently. The Council found that the “new elements” in the sense of art. 51/8 of the Belgian Aliens Law must fulfil three conditions:
(1) the elements must be new, i.e. not have been part of the examination in the context of the earlier asylum request;
(2) the elements must relate to facts or situations that occurred after the last phase of the procedure in which the applicant could have produced them;
(3) the elements must be relevant, i.e. contain serious indications of the existence of a well-founded fear or a real risk of serious harm.
Regarding the third condition the CALL added that the assessment of whether the produced element contains a “serious indication” is connected to the probative value, the relevance and the impact on the credibility of the applicant. The applicant was therefore not correct in his argument that the Immigration Department could only check the “novelty” of the elements and not the probative value, relevance or impact on the credibility of the applicant. When checking the relevance of the facts the Immigration Department must take into account what has been brought forward in the first application.
The CALL subsequently examined whether the assessment that the Immigration Department had made of the produced elements had respected these boundaries and came to the conclusion that this was the case. The CALL found that it was not manifestly unreasonable of the Immigration Department to find that solicited documents are not serious indications of a well-founded fear of persecution. Also the Immigration Department’s assessment regarding the minimal probative value of copies was not problematic for the CALL. It was the Immigration Department’s role to check the relevance of the submitted documents and arguments and, in doing so, to take into account what had been argued in the first application. Within the context of such examination the Immigration Department could well decide that the submitted documents were unable to take away doubts pertaining to earlier statements and evidence.
The CALL concluded that the Immigration Department had not exceeded its powers and that the fact that the applicant did not agree with the Immigration Department’s assessment of the relevance of the submitted elements could not lead to the annulment of the decision. In the context of an appeal for annulment the CALL was unable to redo the assessment.
Outcome:
The appeal was rejected.
Observations/comments:
The legal provision, Art 51/8 of the Aliens Law, states:
“The Minister or his/her mandate holder can decide not to take into consideration an asylum application when the foreign national has previously filed the same application (…), and he/she does not present new elements that there exist, in his/her respect, serious indications of a well-founded fear of persecution (…), or serious indications of a real risk of serious harm (…). The new elements should relate to facts or situations that have occurred after the last phase in the procedure in which the applicant would have been able to present them.”