Slovakia - Migration Office, 27 May 2008, M.H. v Ministry of the Interior of the Slovak Republic, 1 Sža/6/2008

Facts:

The Regional Court in Bratislava, through the decision referred to in the statement, upheld Decision No: MU-249-12/PO-Ž/2006 of 23.5.2006, of the Respondent rejecting the Appellant’s application for asylum on the territory of the Slovak Republic under Section 13(3) of Act No 480/2002 Coll. on asylum and amending certain other acts as amended (hereinafter the Asylum Act), but at the same time prohibiting his deportation or return to Iraq under Section 47 of the Asylum Act.

The Regional Court assessed the Appellant’s asylum application of February 2006 on the basis that it was an application for recognition as a refugee “sur place”. The Appellant left his country of origin in 2000 and first requested asylum on the territory of the Slovak Republic in April 2001 (those asylum proceedings ended as a result of the departure of the Appellant from the asylum facility). The Appellant continued, however, to stay on the territory of the Slovak Rrepublic and again requested asylum in February 2006. On this basis, his application of 2006 was assessed as an application for recognition as a refugee “sur place”. According to the Regional Court, this involves, in basic outline, the fact that, during the Applicant’s stay outside his country of origin, events took place in the country of origin as a result of which he could not or did not want to return. Also according to the Regional Court, however, it was clear from the Appellant’s application that he relied on grounds which arose prior to his departure from the country of origin (prior to December 2000). As the Appellant’s application did not deal with events between 2001 and 2006, the Regional Court found that the Respondent therefore correctly decided to refuse to grant asylum because the Appellant had not raised any grounds in his asylum application for recognition as a refugee sur place”  that occurred during his absence from the country of origin. The Regional Court emphasised that the Respondent had no obligation to discover these grounds on behalf of the Appellant – to look for grounds which came about during his absence from the country of origin.

According to the Regional Court, it was clear from the Respondent’s decision why it had not granted the Appellant asylum, even though it had failed to assess the Appellant’s application from the perspective of an application for recognition as a refugee sur place.

The Respondent dealt with the stated ground of persecution which related to his sympathies with the Kurdish Workers’ Party (PKK) in finding that the situation in northern Iraq had recently improved and the PKK did not represent a security problem. Above and beyond the framework of this reasoning, the Regional Court pointed out that the Appellant, at the time of his stay in Iraq, was not attacked in any way for his support of the party. The alleged death of his father was immaterial from this perspective, according to the Regional Court, because it could have happened in 1996. In this context, the Regional Court drew attention to the Appellant’s statement in the second asylum proceedings, when he stated that his father had been killed by the Peshmerga in 1996 because he was collaborating with the PKK, while in the first proceedings he had stated that his father was alive. In addition, above and beyond the framework of the evidence taken by the Respondent concerning the Appellant’s claim that he was a believer in the Yazidi religion, the Regional Court stated in this regard that the Appellant never claimed any attacks or persecution directed against him as a Yazidi, and at the same time pointed out that the Appellant named Islam as his religion in the identity card deposited in the Respondent’s file and verified the truth of this fact before the Court.

On the basis of the foregoing, the Regional Court upheld the Respondent’s decision, insofar as it was contested, as factually correct.

The Appellant lodged an appeal against this decision within the time limit, in which he claimed that the Regional Court had failed to assess the contested decision of the Respondent within the scope of his appeal, and had made a legally incorrect assessment of the nature of his asylum application. The Appellant considered the application and interpretation of the definition of a refugee sur place by the Regional Court to be legally incorrect. In this context, he drew attention to the definition of the concept of a refugee sur place in the UNHCR Handbook “Criteria and Procedures for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees” (January 1992), according to which a person becomes a refugee sur place as a result of events taking place in his country of origin during his absence, and that a person may become a refugee sur place through his own actions.

The Appellant argued in this context that his asylum application was based on grounds that had taken place before he left his country of origin, and therefore the assessment of his application as an application for recognigion as a refugee sur place was neither possible nor correct from either a legal or a factual perspective.

In this context, the Appellant stated that if his application should have been assessed differently from the way it had been assessed by the Respondent, the Regional Court should have set aside the Respondent’s decision and refered the case back to the Respondent. According to the Appellant, only the Respondent was entitled to decide whether or not a person met the conditions for granting asylum and its decision could not be replaced by a decision of the Court.

The Appellant argued that the Regional Court had failed to carefully examine the evidence he had presented at the hearing. He drew attention to the contents of the material filed by the Respondent and to reports on the situation in Iraq stating that the PKK is still an enemy for the KDP and the PUK.

He objected to the Respondent’s assertion that he was not a believer in the Yazidi faith, claimed that the Respondent’s assertions regarding contradictions in his statements were not true, and disagreed with the outcome of the religious test as presented to him by the Respondent in its decision. In this context, the Appellant referred to the outcome on Yazidism which he had submitted at the hearing and which proved that his answers did not differ substantially from the available information.

In response to the argument of the Regional Court that the Appellant never claimed any attacks directed against him as a Yazidi, the Appellant drew attention to the notes from the interview of 10 January 2001, where, when asked if he had had specific problems as a Yazidi, he answered: ”Yes, I often had problems. People swear at us and throw stones at us ....” or at one point: “We were afraid to go to other cities and villages”.

According to the Appellant, the contested decision was incorrect, and it was also clear that the Regional Court had proceeded in the review of the Respondent’s decision contrary to the provisions of the Civil Procedure Code, had failed to address the facts set out in the appeal and stated during the hearing, and had incorrectly characterised the asylum application, on the basis of which it had made an incorrect decision. He therefore proposed that the contested decision be amended in that the Respondent’s decision be set aside insofar as it was contested and the case be referred back to the Respondent.

Decision & reasoning:

In the appeal, the Appellant stated clearly and comprehensibly where he saw the incorrectness and the resulting unlawfulness of the Respondent’s decision, pointing out that the Respondent’s findings of fact with regard to its assessment of the situation in the country of origin and its assessment of the religious grounds in relation to the Respondent’s conclusion that he was not a member of the Yazidi religious group, were contrary to the contents of the file.

It followed from the reasoning of the contested decision that the Regional Court, on the one hand, considered the administrative authority’s findings of fact to be correct, including its conclusion that the relevant grounds for granting asylum had not been established and, on the other hand, that above and beyond the framework of the grounds listed in the appeal, it assessed the Respondent’s decision to consider the Appellant as submitting an application for recognition as a refugee sur place (in place) as materially correct and decided not to grant asylum because the Applicant had not stated any ground relating to the period of his absence from the country of origin.

The Regional Court’s conclusion that the Respondent’s findings of fact were correct, appears premature (with regard to the fact that it did not address the Appellant’s challenges to the alleged contradiction between the findings and the contents of the file, the evaluation of the religion test – with which the Appellant did not agree – and the evidence he submitted to the Regional Court which raised doubts about the evaluation). That conclusion provides no indication of the correctness of the Regional Court’s procedure in assessing the sufficiency of the factual basis, particularly with reference to the objections raised by the Appellant, which, in the opinion of the appeal court, were disregarded by the Regional Court.

The Regional Court was bound by the scope of the grounds on which the Appellant relied in the appeal, and nothing prevented it from approving the findings of fact relied on by the Respondent. The provisions of section 250i(1) of the Civil Procedure Code do not require the Court to examine evidence submitted, but the Court’s decision must explain how it dealt with the proposals by a party to the proceedings to submit evidence and why it regarded such as unnecessary.

In this context, it should be emphasised that a court’s decision-making cannot be restricted  simply to the factual findings established by the administrative authority, nor with regard to the administrative authority’s procedures for taking evidence, particularly in terms of their relevance, lawfulness and truthfulness. The Court thus completely independently assesses the correctness and completeness of the findings of fact conducted by the administrative authority and, if it discovers factual or procedural law shortcomings in the process, it can respond on the one hand by requiring the administrative authority to remove, replace or amend them, or, on the other hand, it can decide to do so itself.

The procedure followed by the Regional Court in the case did not meet these requirements.

In addition, it was not possible to agree with the legal opinions expressed by the Regional Court in considering that the Appellant was making an application for recognition as a refugee sur place, because a refugee sur place is a person who is not a refugee at the time of departure from his country of origin, but becomes one later as a result of circumstances which occur during his absence.

In the case in question, the Appellant did not claim to be a refugee sur place, and neither was he assessed as such by the Respondent.It was necessary to convince the administrative authority that this was correct, because the Appellant based his asylum application on grounds that occurred before he left his country of origin, and therefore the assessment of his application as a refugee sur place was not correct either from a legal or a factual perspective, and nor was it even possible, due to the lack of an opportunity for the Appellant to challenge it.

In the case in question, the Regional Court was bound by the scope and grounds of the appeal, and in compliance with this legal principle it should have addressed these grounds and reached an opinion on them, particularly from the point of view of whether the objections were capable of calling into question the correctness of the findings of fact. Consequently the Respondent’s decision was incorrect.

In view of the fact that the Regional Court failed to deal with the objections raised by the Appellant in the appeal, incorrectly legally considered the Appellant to be submitting an applicationfor recognition as a refugee sur place, failed to address the Appellant’s proposal to submit evidence in conjunction with his appeal (to show that he was not making an application for recognition as a refugee sur place), and as it was beyond doubt that the Court had acted in respect of matters outside the subject matter of the appeal, it had denied the Appellant an opportunity to be heard before the Court in respect of the objections raised.

Outcome:

The Supreme Court set aside the decision of the Regional Court in Bratislava No 10Saz 56/2006-72 of 12 December 2007 and referred the case back to it.

Other sources:

“Criteria and procedures for determining refugee status under the 1951 Convention and the 1967 Protocol relating to the status of refugees”, handbook issued by the UNHCR in January 1992.