Finland - Supreme Administrative Court, 27 December 2011, KHO:2011:114

Facts:

A Muslim asylum seeker, H, his/her spouse, T, and child had to flee their home country Iran. The Applicant had been arrested for showing an interest in Christianity.

In Finland, the couple joined a religious community called Jehovah’s Witnesses. H was baptised on 19.6.2010 and T on 4.9.2010. Together with their minor child, they took an active part in the activities of the parish. H mentioned proselyting. In their home country, Iran, converting away from Islam can mean a death sentence.

On 11.8.2010, the Immigration Service rejected the Applicants’ applications for asylum and residence permits and decided to refoul them to Iran.

In a decision of 23.6.2011, the Administrative Court rejected the Applicant’ request for an oral hearing and their challenge to the decision by the Immigration Service.

The Administrative Court took the view that, according to reports, religious minorities face maltreatment, harassment and loss of freedom. Additionally, some people have been reported to have been killed. According to Islamic law, converting away from Islam can mean a death sentence. Active proselyting is not tolerated and during the past two years, the Iranian administration has hardened its attitude towards converting to Christianity.

The Administrative Court took note of UNHCR’s view, according to which people who converted from Islam to Christianity or other religions should be assessed on a case by case basis.

The Administrative Court took the view that the Applicants were not Christians in their home country. They got to know the church of Jehovah’s Witnesses during their stay in Finland. It can be assumed that the Applicants’ conversion to Jehovah’s Witnesses cannot be considered as stable, taking into account the Applicants’ current circumstances and their account of their religious conviction during the asylum hearing. In addition, it is unlikely that the Applicants’ conversion to Jehovah’s Witnesses would have been discovered by the authorities in Iran. There have been no grounds in this case to assume that the Applicants would have to suppress their identity in such a way as to make their lives unbearable.

The Applicants asked for leave to appeal to the Supreme Administrative Court and demanded an injunction to stop refoulement until the case is definitively determined.  The Applicants demanded an oral hearing to clarify their situation.

In their appeal, the Applicants submitted a testimonial dated 28.7.2011 to furtherclarify Jehovah’s Witness congregation in Turku-English parish according to which the family takes an active part in parish activities, meetings and talking about their faith to others.

Decision & reasoning:

The Supreme Administrative Court granted leave to appeal and examined the case. In its decision dated 29.9.2011, the Supreme Administrative Court prohibited refoulement until it had made a decision on foot of the leave to appeal or there is otherwise a ruling.

The judgment of the Administrative Court was repealed and the case was sent back to the Administrative Court for a review.

The Supreme Administrative Court stated the following:

According to case-law, persecution arising sur place cannot create new refugee grounds based on an applicant’s own actions which are not based on previous activities in their home country.   However, activities raising persecution sur place can create real threat when returning to the home country.  This cannot be a ground for refugee status but it may be a basis for subsidiary protection.

According to Section 38 of Administrative Law, the Administrative Court has to carry out an oral hearing if a private individual so requests. An oral hearing can be denied if the claim is inadmissible or rejected immediately or if an oral hearing is evidently unnecessary.

According to written statements, H and T joined Jehovah’s Witnesses in Finland, they were baptised and, together with their minor child, had taken part in church activities. According to country of origin information, converting away from Islam in Iran can lead to persecution or inhuman treatment. According to Islamic law, it can even lead to death.

The right to religious freedom is guaranteed in the Finnish Constitution and internationally binding agreements. This includes the right to change religions or religious conviction.

Religious conversion taking place after leaving their home country raises questions regarding the real purpose of the conversion and the credibility of this conversion. Because of this, a thorough investigation has to be made of the circumstances of the conversion and its genuine nature. The assessment has to consider whether the purpose of the conversion was to practice their new religion according to the right to religious freedom or was intended to create grounds for international protection. In addition, the effect of the religious conversion if the Applicants returned to their home country must be taken into account.

The Administrative Court had been presented with a written account of the Applicants’ conversion from Islam and their participation in the parish work of Jehovah’s Witnesses. The Administrative Court could not have rejected the appeal based on the reasons given without an oral hearing. In the oral hearing, the Administrative Court would have been able to obtain more accurate information about the circumstances and genuine nature of the conversion, how the Applicants would practice their religion in their home country and what the consequences might be for them.

Outcome:

The judgment by the Administrative Court was repealed and the case was sent back to the Administrative Court for a review.

Other sources:

UNHCR Guidelines on International Protection: Religion-Based Refugee Claims, 28.4.2004

UKHome Office: Country of Origin Information Report Iran, 31 August 2010

Government proposal  HE 166/2007 vp