Poland - Judgement of the Voivodeship Administrative Court in Warsaw from 13 August 2015 no IV SA/Wa 668/15 annulling the decision of the Refugee Board on refusing refugee status and subsidiary protection
Keywords:
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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
Headnote:
General situation in the country of origin, however difficult, does not justify granting refugee status, if there is no or only some small risk of persecutions (such risk can never be actually eliminated). However the authority is obliged to individually assess the situation of a particular applicant. This is not possible without careful examination of all the letters submitted by the applicant during the proceedings before the first and the second instance. Failure to do this cannot be validated by the Court by determining the facts on its own, since it would lead to de facto depriving the applicant of his right to have the case examined in two administrative instances.
Facts:
The applicant, a national of Ukraine, applied for asylum in Poland in August 2014. He was afraid of the war and wanted to join his wife and children who had fled beforehand and awaited the decision on their asylum application. On 10 October 2014 he submitted a letter to the Office for Foreigners claiming that because of the lack of support from the state and reluctance of western Ukrainian society he had no realistic possibility to live in another part of Ukraine where fights were not taking place. On 28 October 2014 he submitted another letter, this time in his mother tongue. The Head of the Office for Foreigners refused to grant him refugee status and subsidiary protection. The applicant submitted an appeal against this decision. Later on, on 28 November 2014, the applicant submitted a letter to the Refugee Board with further arguments supporting his statements made in the letter from 10 October 2014. The Refugee Board upheld this decision. The applicant lodged a complaint to the Voivodeship Administrative Court in Warsaw.
Decision & reasoning:
The Court agreed with the Refugee Board that the general situation in the country of origin, however difficult, does not justify granting refugee status, if there is no or only some small risk of persecutions (such risk can never be actually eliminated).
The Court noted that the Refuge Board did not sufficiently comment on the letter of the applicant from 10 October 2014 submitted to the authority of the first instance. The Refugee Board stated only that the letter contained parts of a UNHCR report from July 2014 and did not bring any new relevant facts to the case, whereas it contained also arguments as to why the internal protection alternative was not possible in his individual situation. The appeal authority concentrated on the general situation of Ukrainian applicants by stating: “the majority of citizens of Ukraine who left the war zone cannot count on being granted refugee status”.
The appeal authority did not comment on the applicant’s letter from 28 November 2014. The authority even claimed that the appeal of the applicant did not contain argumentation, while in this letter the applicant described the actual lack of possibility to move freely and live in the western part of the country. The appeal authority also prematurely stated that the letter from 28 October 2014 did not bring any new facts to the case – such conclusion was unjustifiable since the letter had not even been translated into Polish.
These failures cannot be validated by the Court by determining the facts on its own, since it would lead to de facto depriving the applicant of his right to have the case examined in two administrative instances.
Outcome:
Annulling the decision of the Refugee Board on refusal of protection.
Observations/comments:
The judgment raises issues falling into the scope of the right to be heard and the right to good administration. The Court makes it clear that the administrative bodies must respect these rights in each of the instances. Indeed, the lack of enforcement of procedural rights until the appellate stage results in the applicant’s primary and secondary EU law rights only applying before the Administrative Court. As a consequence this nullifies the procedural rights attributed to the applicant’s asylum claim throughout the duration of the asylum process.