Hungary - Metropolitan Court, 30 September 2009, D.T. v. Office of Immigration and Nationality 17.K.33.301/2008/15
| Country of Decision: | Hungary |
| Country of applicant: | China (Tibet) |
| Court name: | Metropolitan Court |
| Date of decision: | 30-09-2009 |
| Citation: | 17.K.33.301/2008/15 |
Keywords:
| Keywords |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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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. |
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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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Real risk
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. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “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 can be granted if on return to their country of origin an applicant would face a real risk of torture, inhuman or degrading treatment or punishment. The question at issue was whether the reasons for such ill-treatment related to Refugee Convention persecution grounds or not. All international protection statuses require an individual threat, which cannot be indirect as the risk assessment is a future oriented examination of the possibility of a threat, along with the applicant’s individual circumstances and the probabilities of risk.
Facts:
The applicant, a Tibetan, was attacked by two Chinese policemen, after being caught with a picture of the Dalai Lama. Following advice from his father he left the country through the Nepalese green border. His asylum application was rejected by the Office of Immigration and Nationality (OIN). The applicant was denied subsidiary protection but granted tolerated status (see observations below) based on the principle of non-refoulement. The OIN rejected the application for refugee status as the applicant could not substantiate his well-founded fear of persecution because he was not engaged in politics and did not take part in demonstrations.
Decision & reasoning:
The Metropolitan Court examined the conditions of all the three categories of international protection in Hungary. Firstly, the Court analysed whether conditions existed to grant refugee status. The difference between refugee status and subsidiary protection relate to the existence or non-existence of the Convention persecution grounds (race, religion, nationality, political opinion and particular social group) with regard to the persecution feared, (in this case torture, inhuman or degrading treatment). The Court ruled that the persecution feared by the applicant was not for reasons of political opinion, or religious belief. Otherwise followers of the Dalai Lama would be considered a persecuted group, based on this reason alone. Therefore, the nexus between the alleged persecution and the reason for that perseuction (perseuction grounds) was missing.
When assessing the difference between subsidiary protection and the protection against refoulement, only those whose life or freedom is in danger or could be victims of torture, inhuman or degrading treatment or punishment are entitled to subsidiary protection [under Art 15(b) of the Qualification Directive]. An individual assessment of the risk of persecution was necessary regarding all international protection statuses, even if only the principal of non-refoulement is applicable. It has to be examined whether the applicant would be at real risk of torture, inhuman or degrading treatment in case of return. If the applicant meets the criteria of a higher protection status, this status has to be granted. The Metropolitan Court stated that:
“To establish subsidiary protection requires the applicant to prove that in case of return, the applicant would be at real risk of torture, inhuman or degrading treatment. The significant question is on what reasons is the risk based on.”
As it was impossible to find country of origin information on the consequences of leaving China through Nepal, the Metropolitan Court accepted the existence of torture, inhuman or degrading treatment as the basis of the protection against refoulement set out in the OIN’s decision. Consequently, the Metropolitan Court ruled that the applicant fulfils the criteria of subsidiary protection.
Outcome:
The decision of the OIN was overturned and the applicant was granted subsidiary protection by the Metropolitan Court.
Observations/comments:
Tolerated Status: non-EU harmonised form of protection against refoulement based on Art 3 of the ECHR, please see section 51 of the Act II of 2007 on the entry and stay of third-countryy nationals, available in Hungarian at: http://jogszabalykereso.mhk.hu/cgi_bin/njt_doc.cgi?docid=107401.518283
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Hungary - Act LXXX of 2007 on Asylum - Art 12 |
| Hungary - Act LXXX of 2007 on Asylum - Art 45 |
| Hungary - Act LXXX of 2007 on Asylum - Art 61 |
Follower Cases:
Other sources:
Country information of the Ministry of Foreign Affairs in the United States of America.
Country information of the Ministry of Internal Affairs in the United Kingdom.