Hungary - Metropolitan Court, 2 July 2009, K.A.F v. Office of Immigration and Nationality, 15.K.30.401/2009/12
Keywords:
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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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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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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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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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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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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. |
Headnote:
The case concerned an appeal against a refusal to grant refugee status on the grounds that the applicant lacked credibility as the country of origin information (COI) submitted by the applicant was not verified by the national documentation service providing COI.
Facts:
The applicant, a Sudanese national, was arrested by unknown armed persons as he was found to be in possession of books on the Sudanese Liberation Movement. The applicant was taken to the town of Casa, where he was tortured and detained under inhuman conditions without food or water. An armed militia that was supported by the government controlled the area he lived in and threatened the local population. As a result of this the applicant decided to leave. After having left Sudan he first went to Libya. He arrived in Hungary on the 8th of June, 2008.
The asylum application was rejected by the Office of Immigration and Nationality (OIN) in the first instance administrative procedure. The applicant was granted tolerated status (please see observations) based on the principle of non-refoulement. The OIN rejected that application for refugee status as the applicant could not substantiate that he was from the Darfur region since the geographic details he submitted could not be found by the OIN documentation service providing COI. Therefore the applicant was deemed not credible by the OIN. In addition, the reasons why he had to flee his country of origin were not accepted as grounds for persecution as set out in the 1951 Refugee Convention. Furthermore, the OIN stated that the applicant could not substantiate his well founded fear of persecution. Both refugee status and subsidiary protection were rejected (20-11-2008).
Decision & reasoning:
The OIN claimed that the application was rejected on the basis that the applicant's credibility was refuted as the places mentioned by the applicant could not be identified by the OIN’s COI department. The Court explained:
"(...) because of the inaccuracy of the transcription and pronunciation, multiple searches should be carried out, using a proper map, if this had occurred then the city of Casa would have been found easily.”
The Metropolitan Court accepted the applicant’s arguments stating that the COI relied on by the OIN was incorrect, and the localities the applicant referred to could be found on the map of Darfur, therefore his credibility was not an issue. The Court established that the applicant was a torture victim bearing serious psychological consequences (PTSD syndrome) and that he would face persecution upon his return to Sudan, where state protection was not available for him. The Court granted protection on the basis of the applicant’s membership of a particular social group (being member of the Tanjor tribe) and his imputed political opinion as belonging to revolutionary groups.
“the asylum authority did not examine the applicant’s evidence that he belonged to the Tanjor tribe, even though this is a fundamental question in cases from Sudan. The OIN did not deal with this issue despite the fact that the applicant (...) explicitly pointed out that Janjaweed militia members consider his tribe members as traitors, and they call them servants.”
Outcome:
The decision of the OIN was overturned and the applicant was granted refugee status 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-country nationals, available in Hungarian at: http://jogszabalykereso.mhk.hu/cgi_bin/njt_doc.cgi?docid=107401.518283