Czech Republic - Supreme Administrative Court, 26 March 2008, A.H.M. v. Ministry of the Interior, 2 Azs 71/2006-82

Facts:

The applicant, originally from Nigeria, was a member of the MASSOB separatist political movement, distributing its leaflets and regularly attending meetings of its members. He has claimed that he therefore faces the threat of imprisonment if he returns to his country of origin.

The Ministry of the Interior rejected the application as manifestly unfounded. It concluded that the applicant had applied with the aim of averting imminent expulsion, although he could have requested asylum earlier.

The regional court in Brno dismissed the applicant’s action on the ground that it was out of time.

The applicant lodged a cassation complaint with the Supreme Administrative Court against the ruling of the regional court.

Decision & reasoning:

The Supreme Administrative Court agreed with the regional court that the applicant’s action was out of time. With reference to its previous case law, however, it also examined whether exceptional circumstances applied in the case of the applicant, requiring that the national rule on dismissal of an action that is out of time not be applied. The circumstances in question include a possible breach of the Czech Republic’s international commitments, in particular the principle of non-refoulement.

The court acknowledged that generally available information about Nigeria indicated that supporters of the MASSOB movement may face the threat of imprisonment under certain circumstances, and that conditions in Nigerian prisons may expose prisoners to inhuman and degrading treatment. It was therefore necessary to assess whether the applicant was covered by protection under the principle of “non-refoulement”.

The court noted that the protection provided by the principle of “non-refoulement” within the meaning of Article 33(1) of the Convention Relating to the Status of Refugees may be invoked only by applicants who meet the definition of “refugee” within the meaning of Article 1 of the Convention.

In order for an applicant to satisfy the conditions for the definition of a refugee, it must be, inter alia, “reasonably likely” that the applicant would face persecution in the event of returning.

According to the court, there was a “[r]easonable likelihood of a return to the country of origin […] resulting in an undesirable outcome if such outcomes were not unique in cases similar to the case of the applicant. This does not mean that the likelihood that an undesirable outcome will occur must necessarily be higher than the likelihood that it will not occur.” The court also stated that the test of “reasonable likelihood” represented a lower standard of proof than in civil cases. The standard is thus lower still than the standard of “beyond all doubt” in criminal cases.

It therefore does not have to be certain that the applicant would be persecuted in the event of return; it is enough if “an undesirable outcome occurs in cases similar to the case of the applicant sufficiently often that the person at risk from such an outcome must regard it as a fairly common occurrence, and not merely an exceptional occurrence.”

Where it is not “reasonably likely” that the applicant would face persecution in the event of his return, one of the key defining features of a refugee – the “well-founded fear” of persecution – will remain unfulfilled, and it will therefore no longer be necessary to examine the other defining features of a refugee, or to deal with a possible breach of the principle of “non-refoulement” within the meaning of Article 33(1) of the Convention Relating to the Status of Refugees.

The court then defined the standard of proof for assessing the threat of serious harm. With reference in particular to the case history of the European Court of Human Rights, the court concluded that the decisive standard of proof in relation to subsidiary protection is defined as “real risk” of serious harm.

According to the court, “real risk” must be understood as a situation where “an undesirable outcome occurs in a significant percentage of cases similar to the situation of the complainant, so that the complainant has good grounds for believing that such a result may, with significant likelihood, befall him “.

The court added that the “real risk” test represented a higher standard of proof than the “reasonable likelihood” test. The “real risk” test is thus stricter for the applicant, but it does not reach the level of the criminal standard of “beyond all doubt”.  It does, however, come much closer to the standard of proof applied in civil cases in common law countries than the “reasonable likelihood” standard of proof.

On the basis of the criteria defined above, the court concluded that, in the applicant’s case, it was not “reasonably likely” that he was at risk of imprisonment, because he was just an ordinary member of the MASSOB movement. Reports from the country of origin showed that ordinary members were arrested sometimes, but that neither the “reasonable likelihood” nor even more the “real risk” standard of proof were met.

Outcome:

The cassation complaint was dismissed.

Other sources:

UNHCR: Note on burden and standard of proof of 16.12.1998 (Note  on  Burden  and  Standard  of  Proof  in  Refugee  Claims)