Germany - High Administrative Court, 27 November 2009, 2 Bf 337/02.A

Facts:

The decision concerned a family of ethnic Chechen/Russian nationals. They applied for asylum in Germany in May 2001. In the asylum procedure they stated that it was impossible for them to stay in Chechnya because of the widespread destruction and also because they had been afraid to walk the streets. No member of the family was arrested.

The Federal Office for the Recognition of Foreign Refugees (now: Federal Office for Migration and Refugees) granted refugee status in August 2002. The “Federal Commissioner for Asylum Matters” (the now defunct “Bundesbeauftragter für Asylangelegenheiten”) appealed this decision. Upon this appeal the Administrative Court of Hamburg cancelled the authorities' decision in April 2002 insofar as the granting of refugee status was concerned. The Administrative Court found that there had been no indication for individual persecution of the applicants. Nor were there sufficient reasons to assume that the group of Russian nationals of Chechen ethnicity had been subjected to a “group persecution” in Chechnya or in other parts of the Russian Federation. Further, an appeal to the High Administrative Court was declared admissible because of the fundamental significance of the issue of whether or not an internal flight alternative existed for Chechens in other parts of the Russian Federation.

Decision & reasoning:

The further appeal to the High Administrative Court did not meet with success, as the Administrative Court had been correct in finding that the applicants were not entitled to refugee status.

The applicants' statements were not sufficient to convince the court that they were suffering or were facing an immediate risk of persecution prior to leaving Russia. In any case the issue of whether they had been victims of an individual past persecution can be left open as they can reasonably be expected to return to Chechnya at the time of this decision. For the same reason, the question of whether an internal flight alternative was available at the time they left was irrelevant.

According to Art 4.4 of the Qualification Directive past persecution or serious harm (or the threat thereof) is a serious indication of a well-founded fear of future persecution or serious harm, “unless there are good reasons to consider that such persecution or serious harm will not be repeated.” The High Administrative Court found that such “good reasons” exist in cases of Chechens which do not belong to a particular risk group. In compliance with the decision-making of the Federal Administrative Court, this court assumed that such good reasons existed if there is a so called “sufficient safety from persecution” (“hinreichende Verfolgungssicherheit”). This is the case if a recurrence of past persecution is not to be expected and there is no enhanced risk of (first-time) persecution of a similar kind. At present, neither the country reports of the German Foreign Office nor other available country of origin information provide evidence that a considerable amount of attacks on Chechens takes place which would be solely motivated by the victims' ethnicity.

Furthermore, the Foreign Office stated that returning Chechens are subject to “special attention” by the Russian authorities. However, this only applies to persons who have been notably involved in the “Chechen question” or who are under suspicion to have been thus involved or who are suspected to propagate fundamentalist Islamic views. The applicants do not belong to one of these groups at risk.

Outcome:

The decision by the Administrative Court (denial of refugee status) was upheld.