Belgium - Council for Alien Law Litigation, 12 April 2012, Nr. 100873
| Country of Decision: | Belgium |
| Country of applicant: | Afghanistan |
| Court name: | Council for Alien Law Litigation (GOETHALS) |
| Date of decision: | 12-04-2012 |
| Citation: | RvV, arrest nr. 100.873 |
Keywords:
| Keywords |
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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 former habitual residence
Description
The country in which a stateless person had resided and where s/he had suffered or fears s/he would suffer persecution if s/he returned. For the purposes of the Qualification Directive, “country of origin” means, for stateless persons, the country or countries of former habitual residence. |
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Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
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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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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
Headnote:
The Applicants' applications for asylum were rejected as they did not tell the truth about their former residence(s) before moving to Belgium, and it could therefore not be ruled out that they were also nationals of or enjoyed protection status in another country. However, they could not be deported to Afghanistan, even though it was at least established that they were Afghan nationals.
Facts:
The Applicants are ethnic Sikhs and Afghan nationals. They left Afghanistan due to humiliation and abuse from the Muslim population, and pressure to convert. Their first asylum application was refused as the asylum authorities did not believe that they had been resident in Afghanistan. They filed a second asylum application, submitting their Afghan passports, in addition to other documents. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) found that these new elements (passports) were not sufficient to dispel doubt concerning their recent period of residence in Afghanistan.
Decision & reasoning:
First of all, the judge found that the passports presented showed that the Applicants were Afghan nationals and that this fact was not contested. It was also not contested that they belonged to the ethnic Sikh minority. The judge confirmed that the Applicants had a risk profile and that Sikhs suffer persecution and discrimination. Partly because it could not be established that the Applicants had family or a network in Afghanistan they could resort to for help, the judge concluded that they could not return to Kabul, Afghanistan.
The Court furthermore found that the Applicants had not fulfilled their duty to cooperate, as they had not told the truth about their previous place(s) of residence before coming to Belgium. Just because their Afghan nationality was uncontested did not mean that they were not nationals of another country too or that they did not enjoy protection status in another country, in which case refugee status could be recognised only if the Applicants could not or did not want to invoke the protection of the countries of which they were nationals because of a well-founded fear of persecution.
The Court also found that the Singh v. Belgium judgment of the ECtHR cited by the Applicants did not permit them to deliberately conceal their true places of residence and to leave the Belgian asylum authorities to investigate this matter alone. Furthermore, the Applicants submitted no meaningful documents relating to their previous place(s) of residence.
Outcome:
The application was rejected, and the decision by the Office of the Commissioner General for Refugees and Stateless Persons was upheld. Recognition of refugee status and subsidiary protection were refused.
Observations/comments:
In this judgment, the Court appears to be ruling consistently with the Singh judgment, in which the ECtHR accused the Belgian asylum authorities of not investigating a possible breach of Article 3 of the ECHR in the case of return after deciding that the declarations of the asylum seeker were not credible.
(EDAL translation: '100. The Court notes that neither the CGRS nor the Council for Alien Law Litigation asked themselves, even as a subsidiary question, whether the Applicants were at risk within the meaning of Article 3 of the Convention. It notes that this examination was eclipsed at the CGRS by the investigation into the Applicants' credibility and doubts as to the veracity of their statements (Paragraph 13). Although it is evidently within the asylum authority's discretion not to lend full credence to the Applicants' statements and to doubt their nationality and the route they had taken, the Court observes that the CGRS carried out no further investigation, e.g. authenticating the identity documents they presented, which would have enabled it to verify or dismiss with more certainty the risks in Afghanistan.')
In this case, the judge did find that the Applicants were at risk of persecution in relation to Afghanistan and that return to Afghanistan in these circumstances was not possible, even though he believed that the Applicants had not told the truth about their previous place(s) of residence. The judge thus appears to be including a 'non-refoulement clause' in his judgment. Such clauses in asylum judgments fall within the competence of the CGRS, but are (now) available (since the amendments to statute in 2006) in a very limited number of cases only (e.g. withdrawal of refugee status). The questions are firstly what the legal value is of judges including such clauses and secondly the extent to which compliance therewith will be enforceable by the Aliens Office, which is responsible for policy on return.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Singh and Others v. Belgium, Application No. 33210/11 |
Other sources:
G. S. GOODWIN-GILL, The Refugee in International Law, (second edition), Oxford University Press, 1996, 43–44
CGVS, Cedoca, Subject Related Briefing 'Afghanistan- Veiligheidssituatie Hindoes en Sikhs'['Afghanistan security situation for Hindus and Sikhs'], 11 April 2012
UNHCR, Request for information on Afghans in India
UNHCR, Afghan Hindus and Sikhs: Their Situation and Recommendations for the Assessment of Claims, July 2011,
Country guidance regarding children in Afghanistan,6 July 2011