Poland - Regional Administrative Court in Warsaw, 8 August 2012, V SA/Wa 621/12

Facts:

M.R.I. submitted an application for refugee status. He testified that he had left his country of origin for fear of being persecuted due to his association with an opposition party, of which he was a member in the years 2005-2008 and in which he held the post of secretary. He stated that he had been subjected to psychological and physical violence: he had received threats and had been beaten up. The head of the Polish Office for Foreigners declined to grant M.R.I. protection. In the grounds of its decision, it stated that M.R.I. did not meet the criteria laid down in the Geneva Convention concerning refugee status. The head of the Polish Office for Foreigners also found that there were no grounds to provide the Applicant with subsidiary protection or to grant him a permit for tolerated stay and consequently decided to deport the Applicant from Poland.

The authority emphasised that it did not find the Applicant’s testimony convincing as regards the threat of persecution due to membership of a political party, since the party in question was legal, had the support of the establishment, and was the third most important party in the foreigner’s country of origin. The head of the Polish Office for Foreigners stated that the Applicant’s testimony was not credible because the foreigner was unable to name the leaders of his own party, aside from its founder and the director of the office in which he worked, and was unable to describe the party’s logo. The Polish Refugee Board upheld the decision of the first-instance authority, additionally pointing out a person who fears extra-legal actions by people acting outside the legal system in his country of origin but who has not exhausted all possibilities for obtaining protection in his country of origin, even if the chances of obtaining such protection are illusory or unrealistic, cannot be considered a refugee within the meaning of the Geneva Convention. The foreigner lodged an appeal with the Regional Administrative Court against the decision of the Polish Refugee Board.

Decision & reasoning:

The Court pointed out that, pursuant to the provisions of Article 1A(2) of the Geneva Convention and Article 1 of the New York Protocol, the term “refugee” refers in particular to a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

The nature of the grounds listed in the Convention as causing fear of persecution, and the consequences of such fear, namely, the inability to avail oneself of the protection of one’s country of origin, show that – in light of those provisions – what is principally meant is the threat of persecution perpetrated by state authorities and inspired by reasons of race, religion, nationality, membership of a particular social group or political opinion. Article 1A of the Geneva Convention contains an exhaustive list of criteria that must be met by a foreigner seeking protection, and it should be emphasised that living standards or economic circumstances are not listed amongst those criteria. In accordance with established administrative case law, the grounds for granting protection listed in the Geneva Convention must be interpreted narrowly, since refugee status is not accorded on account of living standards, a foreigner’s personal circumstances, or the state of human rights in his country of origin.

The notion of “well-founded fear” has not been precisely defined in legislation but it has been given additional clarification in case law and in doctrine; it is commonly accepted that it must necessarily contain two elements:  a subjective element (the party has a real and credible fear of persecution) and an objective element (this fear has a basis in reality). The Court found that the authority had correctly established that in the case of M.R.I. his declared fear was not objectively justified.

A person applying for refugee status should present facts and possibly evidence confirming that they were persecuted in the past or that they fear persecution upon returning to their country of origin for the reasons cited in the Convention. Other reasons for a foreigner leaving their country of origin or fearing a return to their country of origin are immaterial as regards recognition of their refugee status.

In the case of the Appellant, such reasons cannot be a hypothetical fear of returning to his country of origin caused by events connected with his person resulting from his membership of a political party that operates legally. The Court agreed with the administrative authorities that there is no evidence of persecution or of the possibility of the Appellant being persecuted by the state authorities and that therefore the Appellant does not meet the criteria for recognition of refugee status within the territory of Poland. The Court also found that the foreigner was treating the refugee status proceedings instrumentally as a means of legalising his stay in Poland.

Outcome:

The Court dismissed the appeal.

Observations/comments:

The decision contains an important section relating to the interpretation of the notion of “well-founded fear", which has both a subjective and objective element. The Court also emphasised that an assessment of possible future persecution must be linked to an assessment of past circumstances connected with the foreigner’s situation prior to leaving his country of origin.

The content of the judgment is available from the Central Database of Administrative Court Judgments:

http://orzeczenia.nsa.gov.pl/doc/74EC9512B3