Hungary - Metropolitan Court, 21 October 2011, M.H. v. Office of Immigration and Nationality, 6.K. 34 830/2010/19
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Metropolitan Court |
| Date of decision: | 21-10-2011 |
| Citation: | 6.K. 34 830/2010/19 |
Keywords:
| Keywords |
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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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
Subsidiary protection was granted to the applicant due to the lack of his family ties in Afghanistan on the basis of the risk of serious harm (torture and inhuman treatment).
Facts:
Decision & reasoning:
The Court rejected the request to grant refugee status but granted subsidiary protection to the applicant. The Court found that the applicant could not give a coherent and plausible account of his fear of persecution that could not be explained by his psychological troubles.
The court ruled that the OIN wrongly assessed that the applicant would not face serious harm based on Art 15 (c) of the Qualification Directive and failed to assess Art 15 (b) at all. According to his individual circumstances the court concluded that Art 15 (b) had to be examined. It was found that he would lack family ties in Kabul and it could therefore be substantiated that he would face torture or inhuman or degrading treatment or punishment if returned, because of his serious and chronic psychological issues that needed assistance. The court assessed that moving to Kabul would not mean internal protection alternative in his case since it is an unknown area for the applicant and it could be established that he would risk being isolated and left alone without social or tribal support therefore the applicant could not reasonably be expected to stay in that part of the country.
Outcome:
Observations/comments:
The Court is to review if the personal interview was carried out in a professional manner with appropriate interviewing techniques. The case worker has to take into account the applicant’s mental and physical condition and the questions addressed have to be simple, not too demanding and not to confuse the applicant.
The Court emphasised that the examination of Art 3 of the ECHR has to cover the time when the judgment is made and not only the time when the administrative decision was issued.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010.