France - CNDA, 29 juin 2011, M.C., n°09015759
Keywords:
| Keywords |
|
Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
|
Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
|
Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
Headnote:
There was no serious reason, within the meaning of Article 4 of the Qualification Directive, to rule out with sufficient confidence that the risk of persecution, from which it is established that the applicant suffered, would not be repeated.
Facts:
The applicant, from Haiti, was a policeman who was dismissed because he refused to obey the orders of his superior who wanted him to commit an offence. As a member of two opposition parties (Organisation du peuple en lutte (OPL), and then Convergence démocratique), he was attacked and received death threats in 2001 from members of armed gangs who were supporters of JB Aristide. After his departure, as a reprisal, the family house was burned down in 2004 and his brother was arrested and killed by policemen in 2005.
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 recalled the provisions of Article 1A(2) of the 1951 Refugee Convention and of Article 4(4) of the Qualification Directive.
The assessment of the case-file lead the CNDA to conclude that violent armed gangs, some of which were still loyal to JB Aristide, were present more and more in Haiti since the earth quake which took place in January 2010. This resulted in a worsening of the security situation.
In this context, the CNDA considered that there was no serious reason, within the meaning of Article 4 of the Qualification Directive, to rule out with sufficient confidence the risk that the persecution, from which it is established that the applicant suffered, will not be repeated.
The Court therefore concluded that the applicant had a well founded fear of being persecuted in case of return to his country for reasons of his political opinions, without being able to avail himself effectively of the protection of the authorities from Haiti.
Outcome:
The applicant was granted refugee status.
Observations/comments:
The CNDA seemed to cite and use Article 4(4) of the Qualification Directive in a positive manner (i.e. by finding no good reasons to consider that past persecution or serious harm will not be repeated) in a growing number of cases even though this provision has not been explicitly transposed in French legislation.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |