Netherlands - District Court Amsterdam, 7 April 2009, AWB 08/05416
| Country of Decision: | Netherlands |
| Country of applicant: | Sierra Leone |
| Court name: | Rechtbank Amsterdam |
| Date of decision: | 07-04-2009 |
| Citation: | AWB 08/05416 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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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:
This case concerned the insufficient sourcing of evidence relied upon by the decision maker in dismissing the applicant’s claim for protection. It was found to be a violation of Art 16.1 of the Asylum Procedures Directive where the decision was insufficiently sourced in the applicant’s file. Further that this violation is not remedied by making specific references to those sources before the court.
Facts:
The applicant claimed to have been the first bodyguard and confidant of the leader of the Kamajors. This leader was arrested by the authorities in 2003 and mentioned the name of the applicant. The Secretary of State rejected the claim on credibility grounds. According to the Secretary of State the applicant did not have sufficient knowledge about the Kamajors and its leader. The applicant claimed at appeal that the respondent did not specify the sources he relied upon to base his decision that the applicant’s account was not credible. As a result of the failure to reference the evidence, the applicant argued that the assessment process was frustrated. The applicant could not, or at least could not completely, find these sources. The applicant argued that this damaged his interests with respect to his asylum claim.
Decision & reasoning:
The District Court held that the respondent had not sourced the specific references from the evidence relied upon in the public domain. As a result, the applicant was not able to locate the specific evidence the respondent had relied upon in dismissing the applicant’s claim and therefore was not able to challenge any of those adverse findings.
The respondent advanced their reasoning for finding the applicant not credible in court. The respondent found the applicant’s account implausible because the applicant did not have sufficient knowledge about the organisation of the Kamajors, which was in contradiction with the Country of Origin report compiled by the Ministery of Foreign Affairs. This report described the very close ties between the members of the Kamajors and a high degree of organisation of the group. The respondent further clarified before the court that it was implausible that the applicant did not have an inauguration ritual, given the fact that the Kamajors still honour traditional customs.
The District Court held that the respondent clarifies on which specific information from which public sources his decision was based that the asylum story was implausible for the first time before the court.
The court concluded that:
‘’the practice of the respondent in not indicating the specific references to sources relied upon in making their decision until the hearing determining the lawfulness of that decision is a violation of Art 16.1 of the Asylum Procedures Directive.
The court does not follow the applicant’s claim that Art 8.2 (b) (3) of the Procedures Directive has been violated. In this dispute it is not about whether or not respondent has taken an appropriate examination and whether or not the respondent has gathered accurate and actual information, but about the way the respondent communicates his findings in the decision as set out in Article 16 of the Procedures Directive.’’
Outcome:
The appeal by the applicant was allowed.