Belgium - RVV, judgment no. 94534 of 3 january 2013
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
The CALL refers to the judgment in the case M. M. vs Minister for Justice, Equality and Law Reform, Ireland, Attorney General by the Court of Justice of the European Union in relation to the interpretation of Article 4 of Directive 2004/83/EC to point out the obligation of Member States to cooperate in establishing the relevant elements in the asylum-seeker's story and thus to carry out a further examination of the specific situation of the asylum seeker.
Facts:
The applicant, an Iraqi from Mosul and Chaldean Christian, says that she fled Syria due to problems encountered by her husband and that she cannot return to Iraq because of problems her brother and cousin encountered there.
In 2006, the applicant moved to Syria with her 2 brothers, sister, and parents due to the war in Iraq, problems encountered by her brother, who ran a shop selling alcohol, and the murder of her nephew by terrorists. Her two other sisters remained in Iraq, in Mosul.
In Syria, the applicant's brothers, sister, and father have a Syrian residence permit, and her mother has Syrian nationality. They still live there.
In 2009, the applicant married a Syrian. In November 2011, she left Syria with her husband and daughter due to problems her husband was encountering because of his activities on behalf of a human rights organisation. In the same month, she applied for asylum in Belgium. Subsidiary protection was granted to her Syrian husband.
The Office of the Commissioner General for Refugees and Stateless Persons assessed her fear in relation to the country of which she is a national, namely Iraq, and concluded that her sisters were still living there andthe applicant didn’t encounter any individual problems, so refugee status was refused. The assessment of subsidiary protection was performed also in relation to Iraq and was also refused, as the applicant's region of origin is viewed as sufficiently safe.
The applicant appealed against this negative decision.
Decision & reasoning:
The applicant stated that the general legal principle of due administrative practice, the duty of care, and the right to be heard were breached, as her interview was brief and no thorough or careful investigation was carried out into her position should she be required to return to an area where Christians are systematically persecuted.
The Council notes that the applicant was unable to elaborate in detail on her fear and found that her personal circumstances, namely her low level of educational attainment and her departure from Iraq back in 2006, were a reasonable explanation for this.
The Council thus finds that the applicant has not been personally persecuted but points out that it must be borne in mind that family members of the applicant do indeed seem to have been persecuted and that the general circumstances in her area of origin are difficult, in particular for non-Muslim minorities. Furthermore, she is vulnerable as her husband, as a foreigner, has no family network in Iraq.
The Council notes also that she left Syria for asylum-related reasons and refers to the subsidiary protection status that was granted her husband.
The Council refers to a judgement by the Court of Justice of the European Union (in the case M. M. vs Minister for Justice, Equality and Law Reform, Ireland, Attorney General, C-277/11), which refers to rules on the obligation of asylum authorities in Member States to cooperate to establish the relevant elements to assess the asylum application (interpretation of Article 4 of Directive 2004/83/EC). In this case, the Council believes that the position of Christian minorities in Mosul should be investigated in further depth. On the basis of numerous reports (including the UNHCR Eligibility Guidelines), the Council concludes that it is likely that Christian minorities in Mosul and Nineveh are vulnerable minorities that probably need international protection.
Taking into account the specific circumstances of the applicant, the difficulties she has in expressing her fear in a detailed manner, and the situation in Mosul, the Council believes that the applicant's fear of persecution on the grounds of her race, religion, and nationality is credible.
Outcome:
Appeal allowed: refugee status recognised.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-277/11 MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General (UP) |
| Belgium - RvS, arrest nr. 118.506 van 22 april 2003 |
| Belgium - RVV, arrest nr. 59.998 van 19 april 2011 |
Other sources:
S. BODART, 'La protection internationale des réfugiés en Belgique' [The International Protection of Refugees in Belgium], Bruylant, 2008, 171–172
UNHCR, 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq', 31 May 2012, pp. 25–28
CEDOCA, 'Subject Related Briefing Irak, De actuele veiligheidssituatie in Centraal-Irak-Ninewa/Kirkuk' [Subject-Related Briefing Iraq, the Current Security Situation in Central Iraq, Nineveh, Kirkuk], 5 January 2012, updated 31 July 2012
P. H. KOOIJMANS, 'Internationaal publiekrecht in vogelvlucht'[An Overview of International Public Law], Kluwer, Deventer, 2000, 354