Germany - High Administrative Court Baden-Wurttemberg, 3 November 2011, A 8 S 1116/11

Facts:

The applicant is a Chinese citizen of Tibetan ethnicity. She fled China in 2008, stayed in Nepal for several months and eventually went to Germany, where she applied for asylum (see comments section below) in November 2008. She stated that she had been raped and threatened by the Chinese police because of her brother’s political activities against the regime. Her brother himself had been killed by security forces.

The authorities rejected the application. Upon appeal, the Administrative Court of Freiburg required the authorities to grant “protection from deportation status” in February 2010 because of the risk of inhuman and degrading treatment. The Administrative Court held that the applicant was not at risk of political persecution, but of further assaults by policemen. The rapes reported by the applicant did not constitute political persecution, but had to be assessed as individual abuses carried out by policemen who had only used the applicant’s brother’s participation in demonstrations as a pretext for the rape.

In the further appeal proceedings, the applicant requested to be granted refugee status in accordance with Section 60(1) of the Residence Act due to her illegal departure, the long period of time spent abroad illegally, and her political activities in exile.

Decision & reasoning:

The High Administrative Court held that the appeal (Berufung) had merit and that the applicant was eligible for refugee status. The Court stated:

The fundamental idea of Art 4.4 of the Qualification Directive corresponds to established case law: It is based on the one hand on the real risk of repetition of persecution, on the other on the humanitarian nature of asylum, according to which, not least because of the psychological effects, a lower standard of risk can be applied only to people who have already been subject to persecution. People who have already been subject to persecution benefit from a facilitated standard of proof, irrespective of whether the persons concerned could have found internal protection.

Tibetans in China are not subject to group persecution. From this point of view, the applicant cannot claim to benefit from a facilitated standard of proof.

Although the standard of living of the Tibetan population is lower than the national average in China, freedom of religion is restricted and repression occurred in the context of protests in the run-up to the Olympic Games 2008, acts of persecution have not been related to Tibetan ethnicity, but to religious and political actions. Accordingly, group persecution based on ethnicity cannot be established.

The applicant, however, has been subjected to past persecution. Contrary to the findings of the Administrative Court, the rapes reported by the applicant constitute acts of persecution, namely according to Art. 9.1 (a) and 9.2 (a) of the Qualification Directive, in connection with the relevant persecution ground of “race” within the meaning of Art. 10.1 (a) of the Qualification Directive. In Tibet, rape committed by security forces does not constitute “excessive acts” without a political context. Like other forms of torture and maltreatment, they occur with above-average frequency in the Tibetan regions. There is nothing to suggest that they merely constitute isolated excessive acts, for which the Chinese state could not be held responsible.

Furthermore, the applicant does not possess an internal relocation alternative. Since she does not speak Chinese, she would not be in a position to make a living outside Tibetan areas. For the same reason, she would be exposed to resentment of the local population and would be subjected to reinforced control measures.

In addition, the applicant has to be regarded as a refugee sur place, since she left China illegally, has stayed abroad illegally for some time and has engaged in political activities in exile.

Outcome:

The applicant’s further appeal (Berufung) was justified regarding her recognition as a refugee. The applicant was eligible for refugee status.

Observations/comments:

Eligibility for asylum according to the German constitution (Article 16 (a) of the Basic Law/Grundgesetz): This constitutional asylum is restricted to people prosecuted for political reasons by state actors and thus it is narrower than the refugee definition of international law. Furthermore, any asylum-seeker who enters from a safe-third country is excluded from constitutional asylum. Since entry into force of the Residence Act (2005) the status of people granted constitutional asylum and of those granted refugee status is almost identical, therefore the significance of the constitutional asylum has diminished. 

Other sources:

• Reinhold Marx, Handbuch zur Qualifikationsrichtlinie, § 28 Rn. 3, § 29 Rn. 12
• Kai Hailbronner, Asylverfahrensgesetz/AsylVfG (Kommentar), § 28 Rn. 29
• Ott, in: Gemeinschaftskommentar AsylVfG, § 27 Rn. 16