France - The National Court for Right of Asylum, 11 April 2014, M.A, No 13020725

Facts:

The applicant, a Russian national and native of Dagestan, had applied for asylum in France. The application was later rejected by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and the National Court of Asylum (CNDA). According to OFPRA the applicant had not established that he had suffered ill treatment during a terrorism investigation, nor that he was sought after by the authorities after having fled from the Wahabite group. In a subsequent asylum application M.A claimed that he still felt threatened for his security if he returned to his native country, as he was still being sought after by the Daghestaneese security forces who had regularly threatened and interrogated his family about hsi whereabouts. Furthermore a search notice had been issued against him, his father had been forced to move to another location to avoid any further aggression against his person by the members of the Wahhabite group and the Police had handed his father with a summons notice under M.A’s name for him to appear as a defendant at The Regional Department of Internal Affairs in Makhachkala.

M.A further claimed that OFPRA had erred in qualifying his application as “manifestly unfounded”, without defining that term, and without providing any such qualifying elements allowing him to properly make his application. Moreover, the applicant submitted that Articles 12, 23 and 28 of the Asylum Procedures Directive had not been correctly transposed into French domestic legislation by means of Article L.723-2 of the CESEDA and therefore OFPRA was obliged to undertake a personal interview with the applicant before rejecting his subsequent application.

Decision & reasoning:

Considering Article 12 of the Asylum Procedures Directive (APD) in conjunction with Article 23, the Court finds that where a subsequent application contains no new elements, Member States are entitled to omit a personal interview and to reject the application as manifestly unfounded.

With regards to domestic law OFPRA cannot refuse to consider a subsequent application unless the applicant fails to provide new documents/ evidence justifying the fears of persecution or the threat of inhumane treatment. To dispense itself from the requirement to interview an applicant for asylum, OFPRA must establish that the documents/ evidence provided in support of the application are manifestly unfounded which is the case where no new elements are presented. In such a case, it cannot reconsider the application for asylum, given that Articles L.723-3 and R.723-3 of the CESDA specify that the absence of new elements in a subsequent application renders the application manifestly unfounded, as defined by Article 28(2) of the Asylum Procedures Directive and thus allows for the personal interview to be dispensed with, as per Article 12(2) of the APD. It follows that the above provisions of the APD have been fully transposed  into the CESEDA. 

Secondly, the Court found that when OFPRA considers a subsequent application which was initially rejected as a final decision under articles L.723-3 and R.723-3 of the CESEDA he must be regarded as applying European Union Law, hence applying its general principles. Amongst these underlying principles is the right for individuals to be heard before any decision which could unfavourably affect them is taken as provided for under Article 41 (2) of the Charter of Fundamental Rights of the European Union and the Court of Justice's decision of MM. This does not automatically place the administrative body under an obligation to organise on its own initiative an interview with the applicant, or to request an applicant to make representations, but rather implies that an unfavourable decision could likely be made  against that individual’s application and he ought to be prepared to make immediate written representations, or request an interview for him to make oral representations. There would only be a breach of such a procedure where the concerned individual had been deprived of the opportunity to present documents/ evidence which could have affected the decision which was taken; the onus of proving it would be on that individual. The Court considered that when making a  subsequent  asylum application, the applicant cannot ignore the fact that such an application is prone to be rejected without the need for an interview if he or she fails to provide any new document/ evidence which justifies fears of persecution. The applicant is therefore entitled to make written representations to support his application through any new document/ evidence at any time during the administrative process. Consequently, a decision of the OFPRA based on all the documents/ evidence submitted by the applicant in support of his subsequent application without an interview does not infringe Article 41(2) of the Charter.  

Thirdly, following an application by someone seeking asylum or subsidiary protection, the  CNDA has a duty to make a decision on the rights of the applicant based on the circumstances that it is aware of at the time of the proceedings, and not to judge on the legality of the decision of the OFPRA. However, if proceedings have been brought against a decision of the OFPRA, which made a decision without interviewing the applicant as provided for under articles L.723-3 and R.723-3 of the CESEDA, it is at the discretion of the court to nullify the decision of the OFPRA and remit it back to the Office for reconsideration. This is the case where it was unlawful for OFPRA to deprive the applicant of the right to be heard. OFPRA had rejected M.A’s application without an interview on the grounds that the original summons document submitted by M.A could not genuinely be identified as an authentic document with certainty as the official seal was dubious and seemed to have been scanned and superimposed on the text of the summons document. Moreover,  the statement of M.A’s father seemed to have been fabricated for the benefit of M.A and with premeditation. Consequently, when OFPRA considered the subsequent application, it was legitimate for it to have rejected the application without any interview since the new documents/ evidence provided were without merits.

Lastly, the Court finds that new evidence brought in a subsequent application can only be presented where the material facts occurred after the decision rejecting the asylum claim or facts which the applicant only later became aware of, subject to the requirements of a fear of persecution. If these conditions are met, the court will make a decision based on the new facts, including those previously examined by the courts. Following a decision dated 25 January, the court had rejected a previous action brought by the applicant. A second application to the Director General of OFPRA was rejected on 10 May 2013 which is now the subject of these proceedings. Taking into account that the document stating the police summons of 6 February 2013 represented further anomalies to those identified by OFPRA, such as the absence of full contact details of the officer who had summoned M.A, and procedural irregularities, such as the right to be assisted by a legal representative, the documents/ evidence submitted by the applicant in support of his subsequent application did not constitute new facts or elements. Hence, according to the Court, M.A’s application must be rejected without any need to re-examine facts he submitted, including those in his first application.

Outcome:

The representations made by the Elena Association and Cimade are admitted ;

The application of M.A is rejected.

Subsequent proceedings:

The applicant appealed this decision to the Council of State. The Council held that Article L.723-3 (c) of the CESEDA is not contrary to Article 12(2) and Article 28(2) of the APD and that the CNDA had not committed an error of law. Nor had the CNDA deprived the individual of his right to be heard.

The appeal against the CNDA’s decision was therefore rejected.

Observations/comments:

Interventions in this case were presented by ELENA France and la CIMADE.

In ELENA France’s submissions the point was made that M.A.’s subsequent application could not be considered as manifestly unfounded given the strict interpretation which was to be given to this term, as specified by the UNHCR. Indeed, the latter highlighted that the use of this term by Member States to rid themselves of the obligation to undertake an interview is contrary to the 1951 Geneva Convention. Similarly the exception to the right to be heard in the Asylum Procedures Directive should be interpreted in a restrictive manner and in conjunction with the Charter. It cannot apply where the applicant presents a new element, such as new material or new argumentation. Moreover, ELENA France argued that Article 723-3 of the CESEDA was in force prior to the transposition of the APD and that consequentially Articles 12(2) and 23(4)(h) had not been transposed, especially since Article L. 723-3 does not make a distinction between the first asylum request and a subsequent asylum application.

With regards to la CIMADE, argumentation was presented as to the reduced scope of determining that an application was manifestly unfounded, namely where the applicant is from a safe country of origin as determined by a list or where the applicant has only made a subsequent application to frustrate return proceedings. These are the only cases which domestic legislation has accounted for. In each of these cases a rigorous examination must nevertheless take place and where new elements are presented, an interview must be carried out.

This case summary was completed by Viraj Greedharry, a student at BPP Law School. 

The case summary was edited and proof read by Dana Feinsohn, a LPC student at BPP Law School.