France - CNDA, 27 July 2010, Mr. A., n°08013573

Facts:

Mr. A., an Afghan national, was born and  had lived in Iran where his parents had taken refuge. Some Afghan families entrusted his father with the task of buying lands in the region of Kabul. These lands were coveted by another clan and by the governor of the province and the families accused him of fraud. In 2005, his father was murdered. He was threatened together with his brother. His mother was killed and his brother was kidnapped. He left his country in 2005 and stayed in Pakistan and Turkey before taking refuge in France where he lodged an asylum application. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his application. In his appeal, he requested the National Asylum Court/Cour nationale du droit d’asile (CNDA) to grant him refugee status or, failing that, subsidiary protection.

Decision & reasoning:

The CNDA considered first of all that the file and the statements of the applicant did not convince the Court on the alleged facts.

On the other hand, the Court recalled that the situation of insecurity in Afghanistan has to be assessed according to the geographic origin of the applicant. The Court considered that while insecurity increased in 2009 in the province of Kabul, due to the increasing number of attacks against foreign delegations and Afghan and international security forces, the assessment of the case does not lead to the conclusion that the situation in this province can be seen as a situation of indiscriminate generalised violence, within the meaning of Article L.712-1 c) of Ceseda [which transposes Article 15 (c) of the Qualification Directive] and as defined in a decision from the Council of State [CE, 3 juillet 2009, Ofpra c/ M.A., n° 320295, also summarised in this database].
 

Outcome:

The applicant’s appeal was rejected.
 

Observations/comments:

Article 15 (c) of the Qualification Directive is transposed in French legislation by Article L.712-1 c) Ceseda.

Article L.712.1 Ceseda reads [unofficial translation]:
“Subject to the provisions of Article L. 712.2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711.1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.

Under French legislation, the threat should thus not only be “serious and individual” (as in the Qualification Directive) but also “direct”. Also, French legislation refers to “generalized” violence rather than “indiscriminate” violence.

The study “Safe at last – Law and Practice in selected EU Member States with respect to asylum seekers fleeing indiscriminate violence” (UNHCR Research Project, July 2011) mentions that, in some CNDA decisions, the level of indiscriminate violence per se in certain regions of Afghanistan (Nagarhar, CNDA, 23 décembre 2010, n°10012894; Baghlan, CNDA, 23 décembre 2010, n°08008198; Ghazni, CNDA, 23 décembre 2010, n°10018212) justify the grant of protection under Article L.712-1 c) of Ceseda. It is however unclear at this stage whether these decisions are indicative of a new assessment of the level of violence in some regions of Afghanistan.