Slovenia - Supreme Court of the Republic of Slovenia, 9 May 2012, I Up 215/2012
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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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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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
Headnote:
Establishing that an asylum seeker is unconvincing is a matter of assessing the evidence, which can only take place when reaching a decision. The competent authority for international protection is not obliged to notify the Applicant in advance regarding its assessment of the evidence.
Paragraph 9 of Article 23 of the International Protection Act stipulates that when assessing an application for international protection the Ministry of the Interior (MI) needs to take into account the specific information on the country of origin that is connected exclusively to the matter at hand. This can also include the manner of enforcing laws and other regulations in the country of origin. The fact that the Applicant participated in the protests is indisputable, thus the MI should have obtained specific information on whether Iranian legislation defines participation in protests and getting involved in a confrontation with security forces as an act that could lead to persecution.
Facts:
The MI rejected the Applicant’s application for international protection, for he was allegedly unconvincing when describing the events. The MI was also of the opinion that he did not have any problems in the period following the protests and that he will not be recognised as a participant in the protests upon his return to Iran.
The Administrative Court ruled in favour of the appeal against the MI’s decision, as, in the opinion of the Court, the Applicant was not acquainted with the reasons why the MI found his statements unconvincing, nor did the MI seek specific information as regards the country of origin or ascertain how the laws are implemented in Iran.
The MI appealed to the Court. According to the MI the issue of whether the Applicant is convincing or not is a part of the evidence assessment, which takes place only when reaching a decision and not during the procedure itself, thus the MI is not obliged to notify the Applicant.
Decision & reasoning:
According to the Supreme Court, the MI was not required to inform the Applicant that it found certain statements unconvincing, since this is a part of the evidence assessment, which takes place only when reaching a decision.
Nevertheless, the judgment passed by the Administrative Court is appropriate, for it cannot be disputed that the Applicant had taken part in the protests (this can clearly be seen on the recordings) and that some persons were mistreated upon their return to Iran. Therefore, a reasonable fear exists that the Applicant will, due to his participation in the protests, be persecuted uponhis return to Iran. The MI wrongfully concluded that the Iranian authorities will not review the footage from the protests, and that even if they chose to do so, the footage is of such poor quality that the Applicant could not be recognized, which is an opinion that is not shared by the Supreme Court.
The MI should assess the specific information on the country of origin, during which it should consider whether the Iranian legislation and regulations stipulate that participating in a protest and confronting the security forces represents an action that could lead to the persecution of the protesters; it should also find out what could happen to such a person.
Outcome:
The Supreme Court dismissed the Appellent's appeal and upheld the contested judgment of the Court of First Instance, thus the matter was referred back to the Ministry of the Interior.
Subsequent proceedings:
In the fresh procedure for international protection the Applicant’s refugee status was recognised by the MI.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Slovenia - Zakon o splošnem upravnem postopku (ZUP) (General Administrative Procedure Act ) - Art 9 |
| Slovenia - International Protection Act (ZMZ) - Art 23 § 9 |