Poland - Regional Administrative Court in Warsaw, 5 February 2013, V SA/Wa 2459/11

Facts:

P.S., a citizen of Afghanistan, submitted an application for refugee status. As grounds for the application she cited the fact that her husband had been a policeman during the Najibullah presidency and had been killed by the Mujahideen, and that her son was working as an interpreter for the American military. P.S. left the country together with her son when the Taliban threatened to kill her son and her entire family; they destroyed her house and intimidated the tenants who worked in her field. The head of the Office for Foreigners refused to accord refugee status or any other form of protection to her, arguing that she had not cited any credible reason to decide in her favour. The authority pointed to the subjective and objective aspects of a “well-founded fear”, adding that although the former was present, an analysis of the evidence in the case did not give reason to believe that there was an objective risk of persecution. The foreign woman appealed against the decision, but the Polish Refugee Board also refused to grant her protection, arguing that she had suffered no previous persecution and that she was not at risk of it in future. The Board also noted that she had not cited any problems with the authorities in her country of origin. The Board also pointed out that it could not accord refugee status to a person who feared extra-legal actions by people acting outside the legal system in her country of origin but who had not exhausted all possibilities for obtaining protection in her country of origin, even if the chances of obtaining such protection were illusory or unrealistic. The Board emphasised that she had not asked for such assistance nor had she shown that the authorities in her country of origin had been unable or unwilling to ensure her safety.

The Applicant appealed against the decision by the Polish Refugee Board to the Regional Administrative Court seeking to overturn the negative decision. The Halina Niec Legal Aid Center joined the proceedings.

Decision & reasoning:

The Regional Administrative Court in Warsaw allowed the appeal.

The Court did not agree with the position taken by the first- and second-instance authorities that there was no real or objective aspect of fear of persecution or serious harm if the Applicant was to return to her country of origin. The Court took the view that the destruction of the Applicant’s family home and intimidation of her tenants were significant facts as regards the plausibility of her fears for her safety in her country of origin. Furthermore, according to the Applicant’s testimony, her son had started to receive threats from the Taliban, who knew what his job involved and regarded him as a traitor. The Court found that the destruction of the family home and intimidation of her tenants were connected with her son’s work for the International Security Assistance Force in Afghanistan. The Court likewise rejected the authorities’ assessment that her fears were not well founded in the context of the situation in her country of origin, citing, among others, the UNHCR Guidelines on the Intenational Protection Needs of Asylum-Seekers from Afghanistan.

The Court found that the Applicant had not cited fear of persecution for reasons of race, religion, nationality or political opinion, and that therefore the condition of membership of a particular social group should be considered, but that this had been completely ignored by the first- and second-instance authorities. This condition ought to be considered given the situation of the Applicant’s son, in relation to whom separate refugee proceedings were ongoing. Furthermore, the Court found that the authorities had wrongly interpreted article 1A(2) of the Geneva Convention as regards evaluating the Applicant’s failure to ask the relevant authorities in her own country for protection against the actions of non-state actors of persecution. One cannot accept the position that an applicant must in every case show that he or she has exhausted all available forms of protection in his or her country of origin. The condition of absence of state protection must not in every case be understood to mean an absolute obligation to exhaust all domestic procedures. The fact that the police, as the Applicant had shown, have no basis upon which to launch an investigation would suggest that the Applicant did apply to the state authorities for protection but that no protection was granted.

For the above reasons the court overturned the decision of the Polish Refugee Board and ordered that the Applicant’s situation be considered in relation to the condition of membership of a particular social group and other possible forms of protection.

Outcome:

The Court overturned the decision appealed against.

Subsequent proceedings:

The Applicant’s son was accorded refugee status in separate proceedings. The Applicant is still waiting for a decision in her case.

Observations/comments:

In the grounds of its judgment, the court stressed the significance of the condition of membership of a particular social group, referring to the link between the situation of the Applicant and that of her adult son. Also very important is a thorough interpretation of the obligation to ask the authorities in one’s own country for protection.