France - National Asylum Court, 5 April 2012, M.Z., No. 10004811
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:
The exclusion of a person who had belonged to a terrorist organisation depended on a personal examination to see whether there were genuine grounds to attribute to him a personal responsibility as organiser, author or accomplice to serious crimes under ordinary law or actions contrary to the purposes and principles of the United Nations.
Facts:
The Applicant, of Iranian nationality, had for many years held high office in the ‘Quds’ contingent of the Revolutionary Guards. He had then left this movement and denounced certain abuses of the regime. The Ofpra rejected his asylum application and he appealed to the CNDA.
Decision & reasoning:
Firstly, the CNDA held that the Applicant’s desertion of the Revolutionary Guards paramilitary organisation exposed him to a real and serious risk of being persecuted by the Iranian regime should he return to Iran. Therefore his fear of persecution in the event of a return was well-founded.
Secondly, reiterating the terms of Article 1F(c) of the 1951 Refugee Convention, the CNDA examined the applicability of the exclusion clause. The Court underlined that the mere fact that a person has belonged to a group known to commit crimes or acts of terrorism does not automatically lead to his exclusion from refugee status.
The Court specified that such a person “is subject to an individual examination to establish whether there are genuine grounds for attributing to him personal responsibility as organiser, author or accomplice to serious crimes under ordinary law or actions contrary to the purposes and principles of the United Nations”. In this regard, it was advisable in particular to examine the functions that the person carried out within the organisation and his degree of personal responsibility, the size of the organisation and the extent to which it was structured and for there to be a sufficient connection established between criminal facts proven against or imputed to the organisation and the personal situation of the person concerned at the time these facts were perpetrated.
In this case, the CNDA held that the Applicant’s level of responsibility, knowledge of the organisation and activity necessarily meant that he was, at the very least, aware of the terrorist attacks and acts to which the ‘Quds’ contingent was a party. In addition, having been present at scenes of torture and rape in secret detention centres, he could not be unaware of the abuses committed by the regime. His defection could not exonerate him from personal responsibility due to its belatedness and the duration of his involvement.
The CNDA concluded that there were genuine reasons to believe that the Applicant had inevitably authorised actions contrary to the purposes and principles of the United Nations and that it was appropriate to exclude him from refugee status in accordance with Article 1F(c) of the 1951 Refugee Convention.
Outcome:
The Applicant’s appeal was rejected.
Observations/comments:
Implied application of the CJEU’s judgment of 9 November 2010 in Germany -v- B. (C-57/09) and D. (C-101/09)
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |