Belgium – Council for Alien Law Litigation, 16 June 2009, Nr. 28.796

Belgium – Council for Alien Law Litigation, 16 June 2009, Nr. 28.796
Country of Decision: Belgium
Country of applicant: Afghanistan
Court name: Council for Alien Law Litigation
Date of decision: 16-06-2009
Citation: Nr. 28.796
Additional citation: Published in: T. Vreemd. 2009 (4), p. 322
Belgium_026 decision (0.14Mo)

Keywords:

Keywords
Assessment of facts and circumstances
Subsequent application

Headnote:

This case concerned subsequent applications and previous findings. The CALL ruled that, when deciding on a subsequent application, it is not competent to re-judge issues that have been decided in earlier applications. The CALL confirmed that those issues are final, unless evidence is submitted that is of such a nature that it demonstrates in a certain manner that those earlier decisions would have been different had that evidence been submitted at that time. 

Facts:

In 2009, the applicant, of Afghan nationality, lodged a second asylum application, in which he submitted a number of new documents (including a newspaper article that appeared to confirm the death of his family members, a letter from the chief of the newspaper authenticating the article, a message from the Khales group addressed to his uncle, a medical certificate confirming that he had been hospitalised in Afghanistan, a number of medical certificates meant to demonstrate his psychological problems and a legal opinion from the Belgian Refugee Council). The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application on, amongst others, the following grounds:

(1) in the first asylum application it had been decided that the applicant’s account was not credible,
(2) the applicant’s statements in the second application were not credible, and
(3) the newly submitted documents were not sufficient to challenge those adverse  credibility findings. The applicant filed an appeal against this decision.

Decision & reasoning:

In this case the UNHCR in Belgium had submitted an advice in which it they argued that the CALL can, on the occasion of the assessment of a second asylum application based on the same facts, re-judge the decision taken in the first asylum application on appeal. Further that by limiting the process to the assessment of the new facts and evidence brought forward in the second application would not, according to UNHCR, be compatible with the doctrine of protection within refugee law. The analysis of the asylum application should be based on a complete picture of the applicant’s background and personal circumstances and the situation in his/her region of origin.

The CALL, however, did not agree and ruled that it was not competent to re-judge the decision in the first asylum application on appeal, when the second asylum application was being considered. They stated that: “The Council does not have the competence to rule again on elements that have already been judged in decisions regarding earlier asylum applications and that, given the fact that those decisions have not been appealed within the time limits legally provided for or that the appeal has been dismissed, should be regarded as final unless an evidentiary element is submitted that is of a nature to demonstrate in a certain manner that those earlier decisions would have been different had the concerned evidentiary element been submitted at the time of those earlier judgments.”

The CALL therefore limited its competence to the judgment of the new elements submitted in the second application. In the case at hand this meant that the CALL considered itself bound by its own decision in the first procedure and considered the findings of that decision as final (principle of res judicata). The CALL ruled that “the applicant’s criticism of the content of these findings cannot, for that reason, be dealt with. The applicant cannot use the possibility to file a second asylum application in order to make a sort of appeal against the final decision on his first asylum application.”

The CALL ruled that almost all the new documents that the applicant had submitted could not be considered as “new elements.” The CALL repeated that new elements in the context of subsequent applications are: all elements that relate to facts or situations that occurred after the last phase of the procedure in which the applicant could have submitted them. From this standpoint, only the applicant’s alleged deteriorated psychological condition and the deteriorated security situation in Pakistan were “new elements”.
 
The CALL continued with an analysis of the new elements, in which it emphasised the applicant’s complete lack of credibility, and concluded that the applicant did not fulfil the criteria for international protection.

Outcome:

The appeal was rejected; both refugee and subsidiary protection status were denied. 

Relevant International and European Legislation:

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