Poland – Polish Refugee Board, 31 January 2013, RdU-315-3/S/12
| Country of Decision: | Poland |
| Country of applicant: | Afghanistan Russia , |
| Court name: | Polish Refugee Board |
| Date of decision: | 31-01-2013 |
| Citation: | RdU-315-3/S/12 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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. |
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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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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
This was a decision of the Polish Refugee Board of 31 January 2013 to uphold that part of the decision of the Head of the Polish Office for Foreigners which concerned refusal to accord refugee status and to overturn the remainder of the decision as well as to grant subsidiary protection.
In the course of criminal proceedings conducted against a foreigner in Poland it was revealed to Iranian consular officials that the foreigner concerned was being held at the Centre for Foreigners seeking refugee status in Dębak. This could have been tantamount to disclosing that the foreigner was applying for refugee status in Poland. Although it is not known whether the foreigner would have suffered repression from the authorities upon returning to Iran, such a possibility cannot be excluded. This circumstance does not fall within the concept of particular social group. However, considering the scale of human rights abuses in Iran and the unpredictability of the regime, there exists a real threat of torture or of inhuman or degrading treatment.
Facts:
The Iranian citizen submitted an application for refugee status in Poland, which he justified on the grounds of political persecution. He explained his dislike of the authorities in his country of origin by reference to a 20-year dispute over land, which had culminated in his family being evicted. In 2009, the foreigner had taken part in street protests following the announcement of President Ahmadinejad’s election victory; the protests were brutally suppressed. The foreigner testified that on two occasions he had been detained and beaten up. He left for Germany, but was detained in Poland on false papers. In connection with the criminal proceedings in this case, the embassy of the foreigner’s country of origin was informed of his whereabouts (the Centre for Foreigners seeking refugee status in Dębak), which could have been tantamount to disclosing that the foreigner was applying for refugee status in Poland. The Head of the Polish Office for Foreigners found that this fact would not have been relevant to the Iranian authorities. The Polish Office for Foreigners refused the foreigner all forms of protection and decided to deport him from Poland. Following an appeal, the Polish Refugee Board overturned part of the decision and granted the foreigner subsidiary protection.
Decision & reasoning:
Refugee status is not a “remedy” for persecution suffered in the past. What is assessed is the current state of affairs – threats that are real on the day a decision is issued.
Potential disclosure of the fact that refugee status had been applied for is relevant to the proceedings. One must consider whether this circumstance falls within the concept of particular social group. Iranians who unsuccessfully apply for refugee status and who are returned to their country of origin do not, however, constitute an homogenous group. One cannot say that such people have a separate identity or are somehow different from Iranian society. Nor can one say that they have shared characteristics or beliefs (they seek protection on various grounds). The only common factor is a greater risk of being verified by the authorities after returning to Iran. However, this does not render such people refugees.
As regards the granting of subsidiary protection, the case is determined by the disclosure of the fact that the foreigner had applied for refugee status in Poland. A study by the Australian Refugee Review Tribunal published on 19 August 2010 (available at www.unhcr.org/refworld/)shows that the Iranian authorities actively gather information about applications for refugee status made by Iranian citizens abroad. There have been cases of torture and of inhuman or degrading treatment, particularly in regard to people involved in the protests of 2009.
To summarise: although is not known whether the foreigner would have suffered repression from the authorities upon returning to Iran, such a possibility cannot be excluded. Considering the scale of human rights abuses in Iran and the unpredictability of the regime, there is a real threat of torture or of inhuman or degrading treatment.
Outcome:
Subsidiary protection granted.
Observations/comments:
The decision to grant subsidiary protection to the citizen of Iran is entirely based on the circumstance that the authorities in the country of origin could have been made aware that the foreigner was seeking international protection in Poland.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Poland - Supreme Administrative Court,3 August 2000, VSA 150/00 |
Other sources:
Australian Refugee Review Tribunal, information request from 19 August 2010