France - National Asylum Court, 30 Novembre 2011, M.S., No. 11005411
Keywords:
| Keywords |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
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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." |
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Acts contrary to the purposes and principles of the UN
Description
Extreme activity with an international dimension committed by persons who have been in positions of power in a state or state-like entity and which attacks the very basis of the international community's coexistence. May include crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights. |
Headnote:
Exclusion from refugee status of an Applicant who had carried out attacks against the Sri Lankan army in the name of the LTTE, a movement included on the list of terrorist organisations as decided by the Council of the EU, during peace-time, with full knowledge, without coercion and when he was over the age of majority.
Facts:
The Applicant, of Sri Lankan nationality and of Tamil origin, came from a family with close links to the LTTE. He had personally been involved in various activities, in particular propaganda and concealment of arms and explosives for the LTTE. The Ofpra rejected his asylum application and he appealed to the CNDA.
Decision & reasoning:
The CNDA, taking the Applicant’s personal situation and various international reports into consideration, firstly held that his fear of persecution should he return to Sri Lanka was well-founded.
Secondly, the CNDA examined the application of the exclusion clause, having reiterated the terms of Article 1F of the 1951 Refugee Convention and the provisions of Article 12 of the Qualification Directive as interpreted by the CJEU in its judgment of 9 November 2010, Germany -v- B (C-57/09) and D (C-101/09).
In relation to the Applicant’s propaganda activities in favour of the LTTE, the CNDA held that, given his young age (13 years) and his family background, he was not able to act in a fully informed way and was not of sufficient maturity to make choices different from those of his family.
In relation to the concealment of arms and explosives for the LTTE during peace-time, the CNDA held that the Applicant was unable to claim he had been coerced and that, at the age of 23 years, it was impossible that he did not know the use for which the arms were destined, in view of their very nature.
In addition, the CNDA held that at no time had the Applicant actually disassociated himself from the LTTE movement or from the actions it carried out.
The CNDA noted that the LTTE was included on the list of terrorist organisations as decided by the Council of the EU on 29 May 2006 and concluded that the Applicant had participated with full knowledge, without any coercion and when he was over the age of majority, in the carrying out of peace-time attacks against the Sri Lankan army. It therefore held that there were serious reasons to believe that he was guilty of acts contrary to the purposes and principles of the United Nations and that it was therefore appropriate to deny him refugee status in accordance with Article 1F(c) of the 1951 Refugee Convention.
Outcome:
The Applicant’s appeal was rejected.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |
Cited Cases:
| Cited Cases |
| CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D |