Czech Republic - Supreme Administrative Court, 30 September 2008, S.N. v Ministry of Interior, 5 Azs 66/2008-70
| Country of Decision: | Czech Republic |
| Country of applicant: | Kazakhstan |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 30-09-2008 |
| Citation: | n.5 Azs 66/2008 – 70 |
Keywords:
| Keywords |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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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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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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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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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. |
Headnote:
This case concerned an appeal against the refusal of international protection to an Imam from Kazakhstan who claimed persecution from state actors because of his religion. The Ministry of Interior (MOI) and the Regional Court considered that persecution had not been established, and that the behaviour of the authorities had not been motivated by the applicant’s religious belief of “pure Islam” (this is a term that is used to distinguish themselves from other Muslims). However, the Supreme Administrative Court (SAC) disagreed and found that due to the specific circumstances of the applicant (an Imam) there was a risk of persecution. The Court also stated that refugee status can involve risk that is motivated by more than one reason, so long as one of those reasons is a persecution ground.
Facts:
The applicant was an Imam of “pure Islam” in Kazakhstan. The applicant claimed to have suffered persecution by the police and Board of National security since 1998. He was arrested in 2004 and in 2006. During the second arrest he was beaten. In 2005 he received a letter from a State Attorney informing him to stop practicing “pure Islam” or he would be punished. Moreover, the applicant stated that his problems with the police (e.g. home searches, interrogation, calls from the prosecution service) were caused by his refusal to register his religious organisation. He left Kazakhstan in 2006 and applied for international protection in the Czech Republic. The MOI did not believe that the applicant was an Imam, because his knowledge of Hadis and Sharia was limited. The application was dismissed. The applicant appealed to the Regional Court who dismissed the appeal and confirmed the decision of the MOI. The applicant, therefore, brought a cassation complaint to the Supreme Administrative Court (SAC).
Decision & reasoning:
The MOI on the one hand concluded that the applicant was illegally forced by the police to register his religious group and excessive force had been used, but on the other hand found that it was not the result of his religious beliefs only.
The SAC accepted that the illegal police procedure might not have been driven solely by the applicant’s religious beliefs. However, the actors of persecution are often lead by more than one motive. The plurality of motives of the authorities did not mean that the applicant did not meet the grounds of persecution and that he should be disqualified from refugee status. There is no need that race, religion, nationality, membership of a particular social group, political opinion or gender should be the only and exclusive grounds as to why the applicant is persecuted. It is enough if one of them is the decisive ground to cause serious harm or to refuse protection. In this case the causal nexus between persecution and grounds of persecution had been fulfilled.
Outcome:
The appeal was successful and the Regional Court decision annulled.
Observations/comments:
Case available at the website of the Supreme Administrative Court - www.nssoud.cz
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - Supreme Administrative Court, 21 December 2005, S.N. v Ministry of Interior, 6 Azs 235/2004-57 |
| Czech Republic - Supreme Administrative Court, 24 February 2004, Y.A. v Ministry of Interior, 6 Azs 50/2003-89 |
| Czech Republic - Supreme Administrative Court, 26 March 2008, A.H.M. v. Ministry of the Interior, 2 Azs 71/2006-82 |
| Australia - Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| UK - Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11 |
| Czech Republic - 2 Azs 71/2006-83 (Supreme Administrative Court) |
| Germany - Federal Administrative Court, 9 C 91.89 |