Germany - High Administrative Court of Bavaria, 14 August 2008, 15 ZB 07.30176
Keywords:
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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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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. |
Headnote:
The Administrative Court lawfully decided that the applicant was not entitled to refugee status since, in the present case, a possible risk of being subjected to acts of persecution was not connected to the reasons for persecution. The group of "businessmen in Colombia" cannot be regarded as a "particular social group" within the meaning of Art. 10.1 (d) of the Qualification Directive.
Facts:
The applicant stated in his asylum procedure that he had been an entrepreneur in Colombia and threatened by paramilitary groups for refusing to pay protection money. The Administrative Court of Munich found in February 2007 that the applicant was not entitled to refugee status. The applicant applied for leave to submit a further appeal at the High Administrative Court.
Decision & reasoning:
The application for leave to submit a further appeal was rejected. The Court held:
The question of whether businessmen or tradesmen should be regarded as a social group within the meaning of the Qualification Directive was not of fundamental significance and therefore did not have to be clarified in a further procedure.
A social group within the meaning of Art. 10.1 (d) of the Qualification Directive has a distinguishable and characteristic identity which is perceptible to the outside. The group in question does not fulfill these criteria, even if it is more narrowly defined as a group of “businessmen who refuse to pay protection money” or as a group of “businessman who have a certain economic power”. There is a multitude and variety of businessmen within Colombian society, therefore such an assumption can be ruled out.
Outcome:
The application for leave to grant a further appeal was rejected. The decision by the Administrative Court of Munich was legally valid.
Subsequent proceedings:
None
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 1 February 2007, 1 C 24.06 |
Other sources:
Kay Hailbronner, Ausländerrecht (Commentary on German alien law), para. 46 et seq. on Section 60 of the Residence Act