France - CNDA, 2 November 2010, Mr. S., n°08008523

Facts:

The applicant is a Sri Lankan national, of Tamil origin. He stated that he had close links with the LTTE. He was excluded from this movement because he refused to work for the intelligence unit. He was arrested and detained for several months. He refused to join Karuna’s supporters who fought against the LTTE. He was arrested by Karuna’s group and then released. This group wanted to recruit his daughter by force. He refused and was arrested. He escaped to Colombo and left the country. He said he was wanted by the Sri Lankan forces and by the LTTE.

The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his asylum application. He challenged this decision before the National Asylum Court (Cour nationale du droit d’asile, CNDA).

Decision & reasoning:

The CNDA commented on each document produced by the applicant’s lawyer highlighting the difficult situation which still prevailed in Sri Lanka in spite of the cessation of the conflict. The CNDA firstly stated that UNHCR notes did not constitute a compulsory legal norm which must be applied by a judge. The CNDA also considered its plenary session decision (CNDA, SR, 27 juin 2008, M.B., n°581505) concerning the application of Article L.712-1 c) Ceseda [subsidiary protection] relating to a situation of generalised violence resulting from a situation of internal armed conflict which ended after the victory of the Sri Lankan army over the LTTE in May 2009. It also considered that the findings of the ECtHR in its decision N.A. vs. United Kingdom dating from 17 July 2008, which it stated were based on the situation which prevailed at that time, and that new relevant and reliable documents show important developments have since occurred in Sri Lanka, notwithstanding a UK High Court decision from March 2010 on an individual case. 

Finally, the CNDA found that the CJEU judgment dating from 17 February 2009 on a preliminary ruling relating to the interpretation of the provisions of Article 15 of the Qualification Directive (Elgafaji Case, C-465/07) was restricted to stating principles on the assessment of the risks in case of return to the country of origin, considering both the personal and current risk claimed by the applicant and the degree of violence prevailing in the country. 

In the present case, the CNDA considered that the applicant’s fears of the Sri Lankan authorities, the LTTE and the Karuna’s group were not well-founded. Furthermore, the Court found that the fact that the applicant belonged to the Tamil community was not sufficient to justify his fears of persecution, considering the situation which prevailed in Sri Lanka, which could not be seen as characterising a situation in which the destruction of a specific ethnic group would be pursued since civilians of Tamil origin were not targeted for persecution by the governmental authorities solely for reasons of their ethnic origin.

The CNDA concluded that the fears of persecution and the serious threats which the applicant would face in the situation which currently prevails in Sri Lanka were not well-founded.

Outcome:

The applicant’s claim was rejected.

Observations/comments:

Article 15 c) of the Qualification Directive is transposed in French legislation by Article L.712-1 c) Ceseda.

Article L.712-1 Ceseda reads as follows [unofficial translation]:

“Subject to the provisions of Article L. 712.2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711.1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.

Under French legislation, the threat under c) should thus not only be “serious and individual” (as in the Qualification Directive) but also “direct”. Also, French legislation refers to “generalized” violence rather than “indiscriminate” violence.

This CNDA decision goes back over the case law of the Court since its decision made in plenary session (CNDA, SR, 27 juin 2008, M.B., n°581505) which considered that the situation which prevailed at that time in some areas of the North and the East of Sri Lanka had to be seen as a situation of generalised violence resulting from an internal armed conflict within the meaning of Article L.712-1 c) Ceseda.  (See another CNDA decision in CNDA, 18 October 2011, M. P., Mme P. & Mme T., n°11007041, n°11007040, n°11007042.

NB: The sources which are cited by the CNDA in this decision are not the result of its own research but were presented by the applicant’s lawyer.

Other sources:

UNHCR Note on the Applicability of the 2009 Sri Lanka Guidelines (July 2009)

UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (5 July 2010)