Poland - Polish Refugee Board, 28 August 2013, RdU-310-1/S/13
Keywords:
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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
A bad situation in the country of origin does not constitute a sufficient intrinsic reason to accord refugee status or other forms of protection.
One cannot question the credibility of an applicant solely on the basis of a discrepancy between the information stated in the application and the information provided in subsequent stages of the proceedings.
Facts:
Z. submitted an application for refugee status in Poland. As the main reason for seeking protection, Z. cited the fact that he had been detained by law enforcement officers on account of the support he had given to [Chechen] fighters. During these detentions he had been forced to cooperate with the authorities. The Polish Office for Foreigners – the first-instance authority – did not believe these claims, stating that the foreigner had not provided this information in his statutory application. Consequently, the Polish Office for Foreigners declined to grant protection, provide subsidiary protection or grant a permit for tolerated stay, and decided to deport Z. from Poland. The authority also banned Z. from re-entering Poland or the Schengen area for a period of six months. The foreigner lodged an appeal against the decision with the Polish Refugee Board.
Decision & reasoning:
The Polish Refugee Board concurred with the first-instance authority that although the situation in Chechnya was very difficult, this did not constitute a sufficient intrinsic reason to accord refugee status or other forms of protection. It is necessary to show that there is an individualised risk of suffering persecution, serious harm, or other human rights abuses within the scope laid down by the Polish Act on the Provision of Protection to Foreigners in the Republic of Poland.
The Board criticised the approach of the first-instance authority, which had questioned the credibility of the foreigner because he had not mentioned being detained in his statutory application. The Board emphasised that one cannot question the credibility of an applicant solely on the basis of a discrepancy between the information stated in the application and the information provided in subsequent stages of the proceedings. For this reason, the Board decided to treat as credible the information given by the foreigner about the repression he had suffered.
However, the Polish Refugee Board also found that the events cited by the foreigner had occurred long before his decision to leave the country, and for this reason the foreigner could not be considered still to be at genuine risk of persecution in his country of origin.
The Board allowed the appeal as regards the foreigner being banned from re-entering Poland or the Schengen area for a period of six months, stating that such a ban had no legal basis. The Board indicated that the first-instance authority had wrongly cited a provision of the Polish Act on the Provision of Protection to Foreigners in the Republic of Poland which states that a deportation decision must also contain a ban on re-entry into Poland, since this provision does not apply to refugee status proceedings. In addition, the Board stressed that the provisions of the Returns Directive in this regard cannot be directly applied and that administrative authorities must act solely on the basis of the relevant provisions that define their competences in specific types of cases.
Outcome:
The Polish Refugee Board upheld the decision of the Polish Office for Foreigners on refusal to grant protection, provide subsidiary protection or grant a permit for tolerated stay and on deportation from Poland. The Board overturned the ban on re-entering Poland or the Schengen area for a period of six months.
Observations/comments:
The decision contains an important section related to assessing the credibility of a foreigner’s testimony in refugee status proceedings. The applicant’s credibility is often questioned on the basis of a discrepancy between the information stated in the application for refugee status and subsequent testimony given during a personal interview.The Polish Refugee Board took into account the conditions under which applications are made and the UNHCR position in this regard, and criticised the approach taken by the Polish Office for Foreigners.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Reports of the Centre for Eastern Studies on the current security situation and human rights in the Chechen Republic.
The Caucasian Knot website: www.kavkaz-uzel.ru
M. Zieliński Interpretation of the Law. Rules, Principles, Recommendations, Warsaw 2002.