Greece - Council of State, 22 March 2011, Application No. 886/2011
| Country of Decision: | Greece |
| Country of applicant: | Bangladesh |
| Court name: | Council of State, Chamber D |
| Date of decision: | 22-03-2011 |
| Citation: | Application No. 886/2011 |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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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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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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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:
A foreigner who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity and in an objectively reasoned way, that there are specific facts which cause him to have a fear of persecution for reasons of race, religion, nationality, social group or political opinion. If such substantive claims have not been submitted, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited but these do not establish grounds for refugee status, then there is no obligation to give specific reasons for rejecting the application for asylum. The “Handbook on Procedures and Criteria for Determining Refugee Status” issued by the UN High Commissioner for Refugees is non-binding in nature but contains “best practice” for the relevant authorities when examining asylum applications and, in that way, sets out “soft law”. Granting a residence permit on humanitarian grounds falls within the broad discretionary powers of the relevant authority; but it can, exceptionally, be obligatory if the foreigner would – should he be repatriated to the country of origin – be at risk of torture or other inhuman or degrading treatment or punishment.
Facts:
The Applicant entered the country illegally and on 18.10.2006 he submitted an application to be recognised as a refugee. When interviewed by the Police Service (in Bangla, through an interpreter) he stated that he was a Muslim and that he left his country because of the prevailing poverty, in order to seek employment. The application was rejected by decision 95/58007/22.11.2006 by the Chief of the Security and Order Branch of the Hellenic Police Headquarters. The Applicant lodged an appeal against this on 25.11.2006 citing “a well-founded fear of persecution in [his] country of origin”. Before the Asylum Committee (which also interviewed him via an interpreter) the Applicant stated, as reported verbatim in the relevant minutes of 26.3.2007, inter alia, that he “was a Muslim but changed his religion because he was taught about Christianity. He is a baptised Christian. As he stated, he will be at risk in Bangladesh because of his change of religion. He studied the Bible in North Korea.” The contested act, which followed the Asylum Committee's unanimous negative recommendation, rejected the appeal because the Applicant's claims during the administrative process were contradictory and unfounded since he had stated, in his initial application, that he left his country for economic reasons but then, before the Asylum Advisory Committee, he stated (without being able to justify his claims) that he was at risk of persecution because of changing his religious beliefs. It was held that the Applicant left his country for economic reasons and that he was using his asylum application to facilitate his stay in the country in order to find employment and improve his standard of living.
Decision & reasoning:
The Council of State ruled that the application in question, with its content as set out above, should be dismissed in its entirety. This was because the Applicant's statement to the police authorities at the first stage of the Administration's process of examining the application to be recognised as a refugee (i.e. that he left his country to seek employment) did not establish a reason for him to be covered by the International Convention; nor did the Applicant submit any specific claims of that type in his appeal. Even before the Asylum Advisory Committee, the Applicant – who had stated in his initial examination that he was a Muslim – reported, totally vaguely, that he was at risk of suffering persecution in his homeland because of the change in his religious beliefs, yet he did not present any evidence to support his claims that he had adopted Christianity nor did he plead that he was unable to present any (even unofficial) relevant evidence. Under these circumstances, since the Applicant had not put forward any claims which were substantive, in the sense set out above, to establish that there was a risk of persecution in his country, the asylum application was lawfully rejected and the contested decision which held the Applicant's claims to be contradictory and unsubstantiated did not require any more specific justification. The Council of State also stressed there was no need for the minutes of the Asylum Advisory Committee's session to give a detailed report of the questions posed by members of the Committee, or of the Applicant's responses, or even his credibility assessment, especially given that the Advisory Committee had no obligation under the provisions of domestic and international law to highlight the Applicant's contradictions which were, in this case, obvious. Pleas to the contrary were, therefore, rejected.
The Council of State also rejected the claim that the contested act was issued in contravention of the UN “Handbook on Procedures and Criteria for Determining Refugee Status” as being unfounded, since it (the handbook) is not binding in nature. Finally, the Court ruled that the Applicant cannot be subject to the provisions of paragraph 4 of Article 25 of Law 1975/1991 (Article 2 of Law 2452/1996) which enable a competent authority to approve temporary residence for a foreigner whose application for recognition as a refugee has been rejected, firstly because there is no evidence or allegation that the Applicant had submitted such a request, and secondly because his claims before the Administration to gain international protection were rejected as contradictory and unsubstantiated. It was also ruled that the Authority was not obliged to specifically examine the possibility of allowing him to remain on humanitarian grounds, and the relevant plea was dismissed.
Outcome:
The Council of State rejected the application.
The Court ordered forfeiture of the fee and required the Applicant to pay the State's legal costs.
Observations/comments:
Court composed of:
Ath. Rantos, Vice-president, presiding in place of the President of the Chamber who was indisposed; E. Antonopoulos, A. Stathakis, Councillors; I. Mazos, V. Kintziou, Associate Councillors. The Clerk was N. Athanasiou.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |
| ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98) |
| ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08 |
| ECtHR - Said v Netherlands, Application No. 2345/02 |
| Greece - Council of State, 31 December 2008, 4055/2008 |
| Greece - Council of State, 5 July 2007, 1628/2007 |
| ECtHR - N. v. Finland, Application No. 38885/02 |
| ECtHR - R.C. v Sweden, Application No. 41827/07 |
| ECtHR - Salah Sheekh v The Netherlands, Application No. 1948/04, |
Other sources:
Decisions of the United States Federal Court of Appeal, second Circuit, Ming Shi Xue v. Board of Immigration Appeals 439 F.3d 111 (2d Cir. 2006), Zhi Wei Pang v. Bureau of Citizenship and Immigration Appeals 448 F.3d 102 (2d Cir. 2006) και Majidi v. Gonzales 430 F.3d 77 (2d Cir. 2005),
Decision of the High Court of Australia, SZBEL v. Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63