Netherlands - District Court Amsterdam, 22 February 2011, AWB 06/24277
| Country of Decision: | Netherlands |
| Country of applicant: | Afghanistan |
| Court name: | District Court Amsterdam |
| Date of decision: | 22-02-2011 |
| Citation: | AWB 06/24277 |
Keywords:
| Keywords |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
Headnote:
This case concerned exclusion and confirmed that Art 12.2 of the Qualification Directive, should be interpreted so that the determining authority must perform an individual examination of the applicant’s case and assess the individual responsibility according to the objective and subjective criteria, as set out in the judgment of Germany v B and D. In such cases, the burden of proof does not rest with the applicant but on the determining authority.
Facts:
The applicant’s residence permit was withdrawn following the Country of Origin report compiled by the Ministry of Foreign Affairs on the Afghan security services dated the 29 February 2000. This report confirmed that all officers and petty officers of the Khadamat-e Etela'at-e Dawlati (Government Inteligence Service) and later known as Wizarat-i Amaniyyat-i Dawlati (Ministry of State Security) (KhAD/WAD) were active in the the KhAD/WAD and personally involved in the torture and execution of people they suspected to be against the regime.
The applicant was an officer in the KhAD/WAD and dismissed any involvement in these acts. He claimed that that is the reason why he did not talk about this during the hearings.
Decision & reasoning:
The district court held that the respondent in cases like this rejects asylum applications with reference to the exclusion clause of Art 1F of the Refugee Convention. For this to apply, the applicant would need to have had a ‘’knowing and personal participation’’. The court also confirmed that the burden of proof switches from the applicant to the decision maker. The district court also confirmed that a similar provision can be found in the Qualification Directive at Art 12.2. The exclusion clauses of this article corresponds with Art 1F of the Refugee Convention and therefore the judgment Germany v B and D (CJEU, 9 November 2010, C-57/09 en C-101/09) concerning Art 12.2 of the Qualification Directive is relevant.
With reference to the recitals of the judgment the court concluded that:
‘’the respondent in this case failed to give sufficient reasoning for its decision with the mere reference to the County of Origin report of 29 February 2000, and providing the applicant with the possibility to prove the contrary. The respondent should have performed an individual examination of the specific facts in the applicant’s case and assessed the individual responsibility according to the objective and subjective criteria, as can be found in the judgment of the CJEU. Although the respondent claims that individual circumstances can play a role in the rejection of the application with reference to Art 1F of the Refugee Convention, he states that the burden of proof rests on the shoulders of the applicant. Given the judgment in Germany v B and D, particularly recitals 94 to 98, this position is erroneous.’’
Therefore, it was found that the decision is improperly prepared and insufficiently reasoned.
Outcome:
The applicant’s appeal was allowed.