Czech Republic - Supreme Administrative Court, 24 July 2013, D.B. v The Ministry of the Interior, 4 Azs 13/2013-34
| Country of Decision: | Czech Republic |
| Country of applicant: | Mongolia |
| Court name: | Supreme Administrative Court |
| Date of decision: | 24-07-2013 |
| Citation: | 4 Azs 13/2013-34 |
Keywords:
| Keywords |
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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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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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is 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 European Convention on Human Rights (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.” |
Headnote:
The application cannot be rejected as manifestly unfounded on the grounds that the Applicant comes from a safe country of origin, if she demonstrably claims and proves, with documented evidence, facts that are relevant to international protection. Domestic violence is such a relevant fact if the Applicant is not provided with efficient protection against such actions.
Facts:
After a few years of staying without permission, the Applicant – who came from Mongolia – applied for international protection in the Czech Republic. She pointed to her problems with her former husband who used to physically attack her and threaten both her and her family in various ways. She used to suffer from continuous harassment and brutal physical attacks, and even changing her place of residence was not a solution. The Applicant supported her statements with documented proof.
The Ministry of the Interior rejected the application as manifestly unfounded pursuant to Article 16(1)(d) of Act no. 325/1999 on Asylum, since Mongolia is a safe country of origin where domestic violence is punishable.
The Municipal Court in Prague rejected the case and confirmed the aforementioned conclusion of the Ministry.
The Applicant filed a cassation complaint with the Supreme Administrative Court.
Decision & reasoning:
Rejection of the application as manifestly unfounded is by definition precluded in cases in which the Applicant provides reasons pertaining to international protection that need to be duly examined. This form of shortened proceedings is available only in situations where no form of international protection is in question. The Applicant, however, talked about a serious case of domestic violence and she supported it with documented proof in the proceedings. Domestic violence may be a reason for granting some form of international protection after an assessment of the extent to which the public bodies in the country of origin are willing or able to provide protection. It is the responsibility of the public body to convincingly disprove that the protection provided by the public bodies will not be of use to the Applicant.
“For such a conclusion, it is not sufficient if it is clear from the evidence collected that there is legislation concerning domestic violence in the country of origin of the Applicant, or that such legislation is enforced by the appropriate bodies in the country of origin. These facts can only demonstrate the willingness of the country of the Applicant to provide protection against domestic violence. In order to conclude that, in that particular case, the alleged domestic violence cannot be considered asylum-relevant persecution in accordance with the Act on Asylum, it is necessary in addition to assess how effective the application of that particular legislation is in the country of origin of the Applicant.”
In the case of the Applicant, the governmental agencies intervened several times against the husband but in the end were not able to provide the Applicant with protection against the acts carried out by the violent husband, because his attacks continued. Moreover, the Applicant sought to support these facts with documented proof. She also partly agreed with and summed up the information from the Ministry concerning Mongolia as a safe country of origin. In such a case, it is not possible to examine the application as manifestly unfounded in abridged proceedings. The above mentioned argument needs to be duly verified and thoroughly proven in substantive proceedings.
Outcome:
The Supreme Administrative Court upheld the cassation complaint and annulled the judgment of the Court and the Ministry.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - 5 Azs 6/2010-107 (Supreme Administrative Court) |