Slovenia - Administrative Court of the Republic of Slovenia, 28 March 2013, I U 1675/2012
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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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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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
In the present case certain formal conditions for dismissing the application through an accelerated procedure as defined in Article 54 of International Protection Act (ZMZ) were not taken into account. The Ministry of the Internal (MI) did not take a stance as regards the circumstances that the Applicant claimed as the grounds for leaving his country of origin and applying for international protection.
Facts:
Prior to his arrival in Slovenia, the Applicant spent one day in Turkey and one year in Greece, where he attempted to apply for international protection but was told at the police station that it is impossible to gain international protection in Greece. Following this, he left for Serbia where he spent one day, after which he continued to the Republic of Slovenia. As the reason for departing from his country of origin, he stated that he was employed as a chauffeur of a person who was married to the daughter of the former Tunisian president. When the revolution started in January 2011, he was beaten, his car was smashed and his house was torched. In the eyes of the revolutionaries he is considered a traitor and a member of the previous regime. Because of this he fears that he would be killed if he was returned to his country of origin.
The MI believes that the Applicant’s application for international protection is merely a ploy to postpone his deportation from the country, for he did not hand in the application at the first possible moment, and he also falsely presented the reasons that he later relied upon.
The MI believes that if the Applicant was truly persecuted in his country of origin, all of his actions following his departure from the country of origin would be geared towards seeking protection. However, prior to his arrival in Slovenia the Applicant spent one year in Greece, as well as failing to apply for international protection while in Serbia. The MI also believes that it is impossible to conclude that the Applicant would be in danger of serious harm if he was returned to his country of origin. It is general knowledge that there is no international or armed conflict in the Applicant's country of origin, for, if there was ,the media would report on it in the same way as it did during the uprising of the Tunisian nation against the regime of Ben Ali in January 2011.
Decision & reasoning:
The Court held that the MI did not reach the correct decision when rejecting the application in an accelerated procedure. According to the Court, the MI’s decision shows that the MI, without truly considering the facts, decided that the Applicant, because he lived in Greece for one year and did not apply for international protection during his stay, nor did he apply during his one day in Serbia, raised suspicion as to the truthfulness of his statements regarding why he fled his country of origin. The MI did thus not consider the Applicant's statements that he was beaten, that his truck was destroyed and that his house was torched. The MI did not offer any arguments as to why it did not believe the Applicant's statements. The MI would have to ascertain with certainty whether the event that the Applicant stated as the reason for leaving his country of origin was truthful or not. The Court believes that the mere fact that the Applicant spent one year in Greece is not enough to ascertain that he would not be persecuted in his country of origin.
It should also not be overlooked that the MI, who criticized the Applicant for living in Greece for one year, states that the Applicant’s statements can be confirmed, that he truly did apply for international protection in Greece, however that he was told he cannot be granted international protection. It is also important that the MI confirmed it understood that the time the Applicant spent in Turkey was merely time spent organising further transport; however the MI failed to explain why the Applicant should have applied for international protection in Serbia, where he also spent one single day.
Taking all of this into account the Court decided that the MI's view that the Applicant did not apply for international protection at the first possible moment is ungrounded, as is the belief that the Applicant applied for international protection merely to avoid being deported from the country.
The Court believes that the MI would also have to ascertain why the conditions for recognising the right to subsidiary protection were not fulfilled. The MI explained that it is generally knowledge that there is no international or armed conflict in the country of origin, for, if there was, the media would undoubtedly report on it. According to the Court, this explanation is insufficient to be able to reach a decision in this case. The Applicant explicitly stated that the revolutionaries consider all employees who worked for the individual he used to work as a chauffeur for, as traitors or members of the old regime. Thus the MI should have obtained information concerning whether the Applicant, by working for an employer within the previous regime, would face a substantiated risk of experiencing serious harm.
Outcome:
The Administrative Court ruled in favour of the appeal, dismissed the decision of the MI and returned the case for a fresh procedure.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act) |