Poland - Regional Administrative Court in Warsaw, 17 October 2012, V SA/Wa 944/12
| Country of Decision: | Poland |
| Court name: | Regional Administrative Court in Warsaw |
| Date of decision: | 17-10-2012 |
| Citation: | V SA/Wa 944/12 |
Keywords:
| 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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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
Headnote:
The appeal authority is obliged to assess the case on the basis of all the evidence and to provide proper grounds for its decision. It is not sufficient, therefore, to state in general terms that the second-instance authority shares the position of the head of the Polish Office for Foreigners and the arguments put forward by him. If the principle of two-instance administrative proceedings is to be observed, it is not enough to assert that two decisions by two authorities of different rank were issued in the given case.
Facts:
M.K. came to Poland with her four minor children and submitted an application for refugee status, citing problems with her dead husband’s family, who wanted to take the children away from her. During the personal interview the Applicant also stated that after the death of her husband, who had been involved in the activities of armed fighters, she had lived with his family and had often changed her place of residence.Her children had not lived with her – she had left two of them with the nanny, one in a children’s home, and one with its grandparents. The Applicant also stated that the reason for leaving her country of origin was the death of her husband and problems with the authorities that were a consequence of that event. It was at that time that her flat had been searched and she had begun to be summoned for interrogations.
Both the head of the Office for Foreigners and the Polish Refugee Board refused to recognise refugee status, provide her with subsidiary protection or grant her a permit for tolerated stay. They argued that her testimony was inconsistent (the circumstances cited in the application differed from those cited in the subsequent personal interview). The refusal was also justified on the grounds that she had not presented any credible reasons for her fear of persecution as laid down in the Geneva Convention.The Polish Refugee Board also explained that persons who leave their country of origin as a result of internal armed conflict are not regarded as refugees within the meaning of the 1951 Convention and they receive protection under separate legislation.To understand this situation differently would mean that the entire civilian population of a country affected by conflict would have the right to move or to emigrate, particularly if the (in most instances, occupying) administration did not protect the interests of that civilian population.The foreigner lodged an appeal with the Regional Administrative Court for the decision to be overturned.
Decision & reasoning:
The Court overturned in full the decision of the Polish Refugee Board due to the procedural errors found therein.
The Court held that – as is shown by the case files – the first-instance authority had taken steps to clarify the relevant facts of the case and had assessed the evidence it had gathered. However, the appeal authority had not undertaken such an assessment nor had it addressed all the allegations made by the foreigner in her appeal.
The Court held that the judicial powers of the appeal authority are not limited to checking whether the allegations made in relation to the decision of the first-instance authority are legitimate.This is because the appeal authority is obliged to assess the case on the basis of all the evidence and to provide proper grounds for its decision.
In this regard, the Court held that it was not sufficient to state in general terms that the second-instance authority shares the position of the head of the Office for Foreigners and the arguments put forward by him. This state of affairs is confirmed by the fact that the second-instance authority failed to present its own findings and assessments or presented them in an overly brief and thus insufficient manner.
The Court noted that if the principle of two-instance administrative proceedings is to be observed, it is not enough to assert that two decisions by two authorities of different rank were issued in the given case.
It is also essential that prior to those decisions being issued each authority conducts its own proceedings such that the purpose for which those proceedings are conducted can be achieved. For this reason, too, the Court overturned the decision appealed against and instructed the Polish Refugee Board that in the new appeal proceedings it should reach its own findings and assess the evidence gathered.
Outcome:
The Court overturned the decision appealed against.
Observations/comments:
First and foremost, the judgment is primarily of great importance in setting an appropriate procedural standard in proceedings to recognise refugee status. The Court stressed the responsibilities of the appeal authority, indicating that said authority needed to reconsider the case in all its aspects, even going beyond the scope of the allegations made in the appeal.