Hungary - Administrative and Labour Court of Budapest, 4 July 2012, S.N. v Office of Immigration and Nationality (OIN), 3. K.31.192/2012/6
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Administrative and Labour Court of Budapest |
| Date of decision: | 04-07-2012 |
| Citation: | 3. K.31.192/2012/6 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
It is expected and necessary that persons fearing persecution should fully and continuously cooperate with the authorities handling their case.
Since the life, basic safety and livelihood chances of people are involved, based on the above described amount and nature of danger (in such cases naturally the actual danger need not and cannot be undoubtedly proved) the very likely occurrence of persecution, harm or other significant detriment cannot be risked.
In relation to the internal protection alternative, the Applicant must have family or kinship ties, or his/her basic livelihood and accommodation must be provided by other means in a certain part of the country.
Facts:
The Afghan Applicant submitted his/her third asylum application in Hungary in September 2011, claiming that due to a conflict over property, his/her cousins killed one of the brothers of his/her father 20 years ago. Following the funeral, the Applicant's father killed the son of the murderer in revenge. Following these events, the Applicant's family was forced to flee to Pakistan. However, the events happened 20 years ago and the Applicant had only heard about them from his/her parents.
Decision & reasoning:
The Court accepted the OIN's opinion on the Applicant's lack of credibility which was particularly reinforced by that fact that, following the decision made in the first case, the Applicant left for an unknown location. According to the Court, “it is expected and necessary that persons fearing persecution should fully and continuously cooperate with the authorities handling their case”. In relation to the recognition of refugee status, the decision contained lawful and valid reasons, i.e. the Applicant could not prove the probability of his/her persecution, and the contradictions in the Applicants statements do not stem from deficiencies in the investigation of the facts. However, in relation to the assessment of subsidiary protection status, based on the country information obtained as part of the investigation as well as the information available in the public domain, it can be ascertained that Afghanistan is increasingly characterised by unpredictable and indiscriminate violence that significantly affects the civilian population. “The relative assessment whether the situation is slightly better (or worse) in certain regions by itself does not make a major difference with regards to harm or persecution. Objectively, all the Afghan regions that the Applicant could reside in are regions at increasing risk, and can be classified as ones with deteriorating security situation. Undoubtedly, the security situation, as well as the events in Afghanistan, are under frequent and intensive change, thus the above mentioned situation certainly cannot be considered as an improving one. (…) This uncertain situation in relation to constantly deteriorating domestic politics, economics and security jeopardises an increasing number of the civilian population and means more and more civilians suffering serious harm. (...) Since the life, basic safety and livelihood chances of people are involved, based on the above described amount and nature of danger (in such cases naturally the actual danger need not and cannot be undoubtedly proved) the very likely occurrence of persecution, harm or other significant detriment cannot be risked.”
In relation to the internal protection alternative, the Court held that Section 92 of the Governmental Decree on the Implementation of Act II of 2007 on the Entry and Stay of Third-country Nationals determines the cumulative conditions concerning what can be reasonably expected. “According to this, the Applicant must have family or kinship ties, or his/her basic livelihood and accommodation must be provided by other means in a certain part of the country.” No evidence justifying the above was produced, thus the internal protection alternative in Afghanistan cannot be applicable in respect of this Applicant.
Outcome:
The OIN rejected the application on the grounds that the credibility of the Applicant was in doubt and his/her personal risk of persecution was not likely.
Observations/comments:
The Court was correct in finding that the Applicant's livelihood must be provided to reasonably raise the alternative of internal protection, and family and kinship ties are necessary for the above.
However, there are concerns that the Court considered the Applicant's departure to an unknown location following his/her first asylum application as his/her lack of fear of persecution.