Germany - Administrative Court Berlin, 7 July 2011, 33 K 79.10 A
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court Berlin |
| Date of decision: | 07-07-2011 |
| Citation: | 33 K 79.10 A |
| Additional citation: | asyl.net/M18942 |
Keywords:
| Keywords |
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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. |
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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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." |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
Refugee status was granted to the applicants (parents) because of their advocacy in Afghanistan for democracy, separation of state and religion, equality between men and women, and their membership of and support for the party “Comprehensive movement for democracy and progress in Afghanistan”. Refugee status was granted to their children because of their membership of a particular social group of “family”.
Threats by political opponents are to be considered as imminent persecution by non-State actors according to Art. 60 (1) sentence 4 (c) of the Residence Act in conjunction with Art. 6 (c) of the Qualification Directive. The Afghan State is unwilling and unable to grant protection against such persecution by non-State actors (Art 7 of the Qualification Directive).
Facts:
The applicants are Afghan citizens. They came to Germany in March 2009 (applicants 3, 4 and 5) and May 2009 (applicants 1,2 and 6), and applied for asylum. The asylum authorities rejected their applications in a decision of 12 February 2010. In their appeal, the applicants applied for refugee status under Art. 60 (1) Residence Act.
Decision & reasoning:
The court found that applicants (1 and 2) were at risk of persecution because of their political opinion and their support for the party “Comprehensive movement for democracy and progress in Afghanistan”. Applicants (3, 4, 5 and 6) were at risk of persecution because of their membership of a particular social group. The court held:
Under Art. 60 (1) sentence (5) of the Residence Act in conjunction with Art. 10 (1) (d) of the Qualification Directive a group shall be considered to form a particular social group if the members of that group share an innate characteristic, or a common background, that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and the group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. The main feature is that the group, apart from the risk of persecution, shares another common characteristic or is being perceived as a group by the society. In this sense, kin liability is persecution due to the membership of a particular social group, namely the family. In the present case, the applicants (3, 4, 5 and 6) are being threatened with abduction in order to affect applicants (1 and 2). They were alleged to have been taken hostage to fight the political opinion of the applicants (1 and 2). This is, at the same time, an independent act of persecution of the applicants (3, 4, 5 and 6). Their membership to the family of the applicants (1 and 2) causally determines this persecution.
These threats were made by the applicants’ political opponents. According to Art. 60 (1) sentence 4 (c) of the Residence Act in conjunction with Art. 6 (c) of the Qualification Directive, this has to be considered as an imminent persecution by non-State actors. The court is convinced that the Afghan state is unwilling and unable to grant protection against such persecution by non-State actors. The central government has practically no influence on many human rights violators. It can neither control them nor can it investigate their deeds or convict them. Due to the desperate situation of administration and justice, many human rights violations remain unpunished.
Outcome:
The authorities were obliged to grant the applicants refugee status.
Observations/comments:
The decision contains a remarkable definition of “particular social group”. The authorities could file an application for further appeal to the High Administrative Court.