Slovakia - M. v Ministry of Interior of the Slovak Republic, 23 February 2010, 1Sža/12/2010

Facts:

The Migration Office issued a decision under which the Applicant was not granted asylum, but was provided with subsidiary protection. The Applicant filed an appeal against the refusal to grant asylum, in which he stated that the findings of fact contradicted the contents of the files, that the Respondent had made an incorrect legal assessment of the Applicant as an untrustworthy person, that there had been a breach of Article 3(1) of the Convention on the Rights of the Child and that the Migration Office had failed to provide sufficient justification for the refusal to grant asylum on humanitarian grounds.

The Regional Court in Bratislava issued a judgment upholding the decision of the Migration Office in so far as it refused to grant asylum, concluding that the Migration Office had found and evaluated the facts correctly and in a satisfactory manner in the decision.

The Applicant filed an appeal with the Supreme Court against the judgment of the Regional Court in Bratislava, in which he expressed the view that account should be taken in the proceedings of his age and level of intellectual development, the fact that he found himself in a foreign cultural environment and also his mental state in relation to the events that had happened in his country of origin. He also criticised the Migration Office and the Regional Court for failing to take account of these facts.

According to the Applicant, the Regional Court completely failed to deal with the grounds of the appeal regarding his assertion that the Migration Office had made an incorrect legal assessment of the case. He also claimed that the Regional Court had not dealt with the reports on his country of origin which he had added to the file during the proceedings, and he did not agree with the opinion of the Court in assessing him as an untrustworthy person. He expressed the belief that the Court’s opinion was based on an incorrect legal assessment of the case. The Applicant stated that the contradictions referred to by the Regional Court in the reasoning of the judgment did not amount to contradictory statements, but rather were mutually reinforcing.

Decision & reasoning:

It is apparent from the reasoning of the decision that the Migration Office, with reference to its assessment that the Applicant’s statement was untrustworthy, concluded that the Applicant did not leave his country of origin on his own initiative or for any of the reasons set out in Section 8 of the Asylum Act.

In contrast to the Regional Court, the Supreme Court considered the Migration Office’s conclusion, to be  unsubstantiated. Firstly, the Migration Office completely failed to address the objective element of the Applicant’s feeling of fear in its decision, as it did not analyse the situation in the country of origin in terms of the position and actions of the Taliban movement and the attitude of the state authorities towards members of the movement. It also completely failed to reach a decision regarding whether Afghanistan could be considered a safe country in which the state authorities could be relied on to provide effective protection in a lawful manner against gross violations of fundamental rights and freedoms by non-state entities.

With regard to what is known about the situation in Afghanistan, according to the Supreme Court, the possibility cannot be excluded that the Applicant was telling the truth when he claimed that his father was murdered for refusing to obey the Taliban’s order to grow poppies instead of wheat. It was equally impossible to dismiss the Applicant’s fears of being forced to attend a madrassa religious school if he returned to his country of origin. The fact that the Migration Office failed to address the possibility of persecution by non-state entities, taking no evidence of this despite the Applicant’s claims, shows, according to the Supreme Court, the unsustainable nature of the Migration Office’s conclusion - which was also adopted by the Regional Court - that the Applicant could not be considered a persecuted person within the meaning of the Asylum Act.

The Applicant claims that his fear stems from the fact that his father was shot by the Taliban for refusing to obey their order to grow poppies instead of wheat. The Applicant also expressed fear that the Taliban would force him to attend a Taliban school – a madrassa - after returning to the country, in order to learn how to fight the foreigners. The Migration Office considered these claims to be unproven, and in view of the contradictions - which it analysed in detail in its decision – it evaluated them as untrustworthy, as did the Regional Court.

The Supreme Court concluded that the Regional Court’s opinion of the Applicant’s credibility was not sustainable in view of the special nature of the case, which involves an unaccompanied foreign minor who found himself in a completely different cultural and social environment, a fact that should have been taken into account when assessing his asylum application and his credibility.

According to the Supreme Court, the Applicant’s statement was consistent and free of internal inconsistencies throughout the proceedings, since all of his statements conveyed the feeling of fear in essentially the same way. Furthermore, the contradictions regarding the place where his father was allegedly shot did not, in the opinion of Supreme Court, amount to fundamental contradictions in the temporal and psychological aspects of the statement  capable of destroying the Applicant’s credibility and consequently calling into question the credibility of his story. Even the fact that he originally appeared under the name of C. could not, in view of the foregoing, be seen as a sufficient reason for the Migration Office to conclude that the Applicant was an untrustworthy person. The Applicant had thus not deviated from the grounds on which he was applying for asylum, and his claims were intelligible and essentially consistent.

In view of the Applicant’s age and the specific nature of his status as an unaccompanied foreign minor coming from a different social and cultural environment, the claims which he made in the administrative procedure cannot, according to the appeal court, be considered untrustworthy or false.

The procedure and decision-making of the Court in the appeal against the Migration Office’s decision not to grant asylum constitutes a procedure for reviewing the legality of the decision pursuant to Part V of the Civil Procedure Code and not a continuation of the administrative procedure. It is therefore not the role of the court of first instance or the appeal court to add to the argumentation on the merits of the decision of the Migration Office or the legal argumentation, and neither is it their role to take evidence in relation to the facts, the finding of which is a role of the administrative procedure.

As the administrative decision was based on insufficient findings of fact for the conclusion adopted by the Migration Office and upheld by the Regional Court, and the appeal court did not agree with assessment of the Applicant as an untrustworthy person (the decision was thus based on an incorrect legal assessment), and as the Regional Court should have set aside the decision of the Migration Office on the basis of the foregoing and referred the case back to it, but failed to do so, it was therefore not right to set aside the decision of the Regional Court and refer the case back to that Court for a new assessment. The appeal court concluded instead that the decision of the court of first instance should be amended such that the decision of the Migration Office be set aside and the case referred back to the Migration Office.

Outcome:

The Supreme Court of the Slovak Republic amended the judgment of the Regional Court in Bratislava such that it set aside the decision of the Migration Office and referred the case back to the Migration Office.

Subsequent proceedings:

In further proceedings, the Migration Office granted asylum to the unaccompanied foreign minor on humanitarian grounds. 

Observations/comments:

President of the Bench: JUDr. Igor Belko, members of the bench: JUDr. Ing. Miroslav Gavalec, PhD. and JUDr. Elena Berthotyová, PhD.