Hungary – Metropolitan Court, 30 September 2010, S.W.J. v. Office of Immigration and Nationality, 24.K.32 957/2009/23
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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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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." |
Headnote:
The Ethiopian applicant was a victim of sexual violence and suffered from serious post-traumatic stress disorder (PTSD). Her claim was rejected based on credibility concerns. The court ruled that the asylum authority failed to assess the facts of the case in a proper manner by applying inappropriate interview techniques and wrongly concluded that the applicant did not substantiate her well-founded fear of persecution.
Facts:
The applicant, an Ethiopian national, was the victim of rape, torture and arbitrary detention. Her asylum application was rejected by the Office of Immigration and Nationality (OIN) who found that the applicant’s statements were not coherent and lacked credibility. The applicant was granted tolerated status based on the principle of non-refoulement.
Decision & reasoning:
The court ruled that it is the duty of the asylum authority to assess all relevant facts of the case and the burden of proof is divided between the applicant and the authority. The Metropolitan Court stated that the OIN failed to clarify the circumstances of the case. The applicant provided detailed facts about herself and her family. The Metropolitan Court stated that it was not the applicant that mixed-up the dates in her account, but it was the OIN case worker who did not ask questions in a chronological order.
The court found that according to an on-going practice, each time a case worker touched on relevant facts or circumstances related to Convention grounds, the case worker changed the topic and asked something totally different. The Metropolitan Court argued that this practice was not acceptable. The OIN did not even make an effort to clarify the contradictions that appeared, whereas most of the time these contradictions arose from the translation, or general misunderstandings. The Metropolitan Court stated that the OIN came to the wrong conclusion regarding the psychological state of the applicant, therefore there should have been an independent expert to consult. The OIN should have considered that the applicant had PTSD syndrome.
The court stated that the OIN’s practice is problematic, namely that it opposes asking relevant questions which precludes the applicant from having an opportunity to give a comprehensive account of their claim. Further, that when the applicant has the opportunity to give a full account in the court proceedings, the authorities then argue that the applicant is not credible as the account was not previously given. The court was critical of this approach by the authorities.
The court found that Art 59 (2) of the Asylum Act is applicable, which foresees that “if it is found by a medical expert that the incoherency and contradictory nature of the statements by the applicant is justified by a circumstance arising from the state of health or psychological condition of the applicant” it does not indicate that the criteria for recognition as a refugee are lacking.
The court found that minor or irrelevant incoherencies did not amount to a lack of credibility, especially when the hearings or interviews took place between long time intervals. The Metropolitan Court stated that:
“The OIN could have clarified the differences, and could have eliminated the contradictions - even in the first instance administrative procedure – by asking well oriented questions that intend to help the applicant’s understanding.”
Due to the above deficiencies the decision of the OIN was deemed unfit for substantive review.
Outcome:
The decision of the OIN was quashed and a new procedure was ordered.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Article 50 of the General Rules of Administrative Proceedings and Services (Act no. CXL of 2004) - places a general obligation on the authorities to establish the facts of the case.