Germany - High Administrative Court Nordrhein-Westfalen, 19 June 2008, 20 A 4676/06.A

Facts:

The applicants (a family with three children) belonged to the Hindu minority in Afghanistan. They came to Germany in 2003. The authorities rejected their asylum claim in June 2004, an appeal against this decision was dismissed by the Administrative Court of Arnsberg in November 2006. A further appeal to the High Administrative Court was granted because of divergent decisions by lower courts. In the further appeal procedure the applicants claimed that they were at risk of religious persecution as members of the Hindu minority. State protection was not available to them. Furthermore, they would not be able to safeguard the necessary means of existence in case of a return to Afghanistan.

Decision & reasoning:

The decisions by the authorities and the Administrative Court to reject the family's asylum applications were deemed lawful by the High Administrative Court. According to the Court, the applicants' statements on past persecution had to be considered as implausible. It had to be assumed, therefore, that they had not been at risk of persecution before they left Afghanistan. Accordingly, they could not benefit from the facilitated standard of proof.

There was no considerable likelihood that the applicants would face persecution because they belonged to the Hindu community. While Hindus faced discriminatory measures and hostilities, they were not persecuted as a group. Upon return, the applicants would not face difficulties which would justify the recognition of refugee status. The only act of persecution which might be relevant was the accumulation of various measures within the meaning of Art 9.1 (a) of the Qualification Directive. Discriminatory legal measures within the meaning of Art 9.2 (b) of the Qualification Directive were unlikely since the Hindu community was so small that it did not pose a challenge to the role of the Muslims. There were no indications of the existence of acts of persecution within the meaning of Art 9.2. (c) through (e). Acts of a gender-specific or child-specific nature (Art. 9.2. (f) of the Qualification Directive), which might take the form of kidnappings, forced marriage and forced Islamisation of girls, did not constitute a concrete threat, since available information on such incidents was contradictory.

As far as the accumulation of human rights violations was concerned, especially physical acts of violence, the “density” of such acts of persecution was too low to justify the recognition of refugee status. The fact that Hindus did not reveal their religious identity in public and tried not to attract attention, did not constitute an act of persecution within the meaning of Art 9.1 (a) of the Qualification Directive. It was not evident that these acts forced Hindus to violate basic rules or obligations of their religion. Refraining from publicly manifesting one's faith as a precautionary measure, did not constitute an act of persecution in itself.

Therefore, the entry into force of the Qualification Directive does not lead to a change in the jurisdiction of the High Administrative Court concerning the issue of group persecution of Hindus in Afghanistan.

Furthermore, there was no situation of “extreme risk”, which might constitute a reason for protection from deportation status under German law (Section 60 (7) (1) of the Residence Act). The High Administrative Court only assumes that this provision only applies to old, ill and disabled returnees without family or other support, and to single female returnees.

Outcome:

The applicants were not granted refugee status or protection from deportation.

Subsequent proceedings:

Unknown