Greece - Council of State, 31 December 2007, M.N. v Minister for Public Order, Application No. 1423/2007
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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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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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
The Court held that the conditions for offering the Applicants temporary judicial protection had been satisfied, taking into consideration that the Asylum Committee had rejected the asylum-seeker's claims as being unsubstantiated without assessing his credibility, and also because the decision which rejected the application for asylum only vaguely referred to the prevailing situation in Iran.
Facts:
This petition sought to give suspensive effect to decision 95/56362/10.11.2006 by the Minister for Public Order (not by the Ministry's General Secretary, as erroneously recorded in the petition's court file) which was a final rejection of the 13.4.2006 application for political asylum which was submitted by the Applicant, who declared himself to be an Iranian citizen. A petition for annulment had also been filed against the same ministerial decision, and had been set for hearing on 10.2.2009. The Applicant claimed that the regime in his country had considered his scientific discoveries to be contrary to or a threat to Islam, and this resulted in him being imprisoned and subjected to psychological torture. The contested decision, issued pursuant to the unanimous negative opinion given by the Asylum Committee on 18.10.2006, held that the Applicant's “unsubstantiated” claims about “fear of persecution because of scientific discoveries which were a threat to the theocratic regime in Iran, in conjunction with the prevailing situation in his country of origin” do not provide legitimate evidence of grounds to grant him the protected status of the 28.7.1951 Convention. That same decision, moreover, gave the Applicant a deadline of three months to voluntarily move to another country of his own choice.
Decision & reasoning:
The Suspension Committee of the Council of State took into consideration the fact that the Applicant's claims had been rejected as “unsubstantiated” without any justification concerning his lack of credibility; and also that the contested ministerial decision made only a vague reference to the prevailing situation in Iran. The Suspension Committee held that there were legal grounds to accept his petition so as to avoid harming the Applicant in a way which would be difficult to rectify later should his application for annulment be successful. That harm would result from, in particular, his forced return to Iran and consequent exposure to threats to his safety and freedom.
Therefore, the C.o.S. held that until it has issued its final decision concerning the pending petition for annulment, a) the contested ministerial decision must be suspended insofar as it gave the Applicant a deadline for leaving Greece, b) the Administration must be ordered to refrain from any action based exclusively on the contested decree which would result in the Applicant's forced departure from Greece, and c) any foreigner's asylum-seeker card which may have been withdrawn from the Applicant must be returned to him, with its validity extended if appropriate, so as to fully restore the situation the said foreigner would have been in before the rejection of his application for recognition of refugee status.
Outcome:
The C.o.S. accepted the petition; it suspended the contested ministerial decision, as referred to in the reasonings, until the C.o.S. issued a final decision on the pending application for annulment; it ordered additional measures as referred to in the reasonings; it required the State to pay the Applicant's court costs; and it ordered the fee to be returned.
Observations/comments:
Suspension Committee of the Council of State, Athens
Court composed of: M. Vrontakis, Vice-president, President of Chamber D;
D. Gratsias, Councillor;
I. Mazos, Associate Councillor.
The Clerk was A. Triadi, Clerk of Chamber D.
See also: http://www.dsanet.gr/1024x768Auth.htm