Case summaries
This case concerned the treatment of evidence from unaccompanied minors. The applicant was an unaccompanied minor from Afghanistan. He claimed asylum on the basis of a fear of persecution both by the Taliban and the Afghan government. The Refugee Appeals Tribunal refused his refugee appeal on the grounds that the applicant was not credible and that his claim was not objectively well-founded. The Court found that the Tribunal Member had engaged in impermissible speculation and conjecture in relation to the applicant’s prospect of State protection in Afghanistan, that the Tribunal Member had imputed expectations to the applicant without any consideration of the applicant’s level of maturity at the time, and that the Tribunal Member had failed to consider whether the applicant’s fears in relation to the Taliban were realistic having regard to his age, maturity and the particular circumstances in Northern Afghanistan.
Asylum applicants who have already been subject to persecution also benefit from the facilitated standard of proof of Art 4.4 of the Qualification Directive in the course of the examination of whether an internal protection alternative is available to them.
The term "act of persecution" within the meaning of the Qualification Directive requires that an intentional infringement of a basic right as defined in Art. 9.1 of the Qualification Directive takes place. If the applicant has suffered past persecution (before his/her flight), it is no longer possible to deny refugee status solely on the ground that an internal protection alternative had existed in another part of the country of origin at the time of the flight (change of legal situation in the light of Art. 4.4 of the Qualification Directive).
This case concerned fear of persecution for reasons of race and membership of a particular social group. The provisions of Article 1(4) of Presidential Decree 61/1999, which should be interpreted with reference to Articles 3 and 22 of the Convention on the Rights of the Child, recognize the special circumstances of asylum applications submitted by unaccompanied minors, for whom special procedural guarantees have been established. When examining asylum applications submitted by unaccompanied minors one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. Particular emphasis is given to the existence of objective factors, based on which one can assess the existence of a well-founded fear that unaccompanied minors may be persecuted in their own country. The contested decision is annulled for insufficient reasoning because there is no evidence in the file that the Administration took care to ensure that a special temporary representative was appointed for the unaccompanied minor, and there is no reference in the report to there having been an oral assessment to determine the level of his mental maturity.
Application for annulment of a decision by the Minister of Public Order
The case addressed the absence of procedural guarantees in the context of appointing a Commissioner and assessing the applicant’s level of maturity with regard to the need for special treatment of an unaccompanied minor.
The lack of personal persecution of an alien applicant does not preclude the recognition of refugee status if it is shown that there is an objective and well-founded fear of individual persecution in the applicant's country.
The Court found that the decision of the Minister for Public Order was improperly reasoned in that itfailed to comply with the Administration's obligations to take into account the particular circumstances of the case, to consider the merits of the applicant's claims based on objective evidence, to conform with procedural guarantees when assessing applications by unaccompanied minors, and to interpret the applicant's claims within the true intended meaning of the words used. It found that the Administration had failed to investigate the applicant's risk of persecution on the grounds of his racial origins and membership of (participation in) a particular social group (young male Hazara) in view of the prevailing conditions in his country. The contested decision was also defective because of a failure to examine the existence of conditions for protection on humanitarian grounds.
State protection should be assessed in the applicant’s home area, in the absence of an internal relocation alternative. The Tribunal erred in finding that the fact that the applicant had been raped at her home on 3 separate occasions over a short period by government soldiers had the same effect on assessing future risk as if she had been raped by civilians. The soldiers appeared to act with impunity whereas that would not necessarily be the case for civilians. In assessing future risk past experience was central, as reflected in Art 4(4) of the Qualification Directive and by common sense.
The applicant, a lesbian from Iran, was recognised as a refugee. The court found:
- It is unreasonable for homosexuals to refrain from sexual activities in order to avoid persecution.
Although there is no systematic persecution of homosexuals in Iran, there is a considerable risk of detection and persecution.
There are "good reasons" within the meaning of Art 4.4 of the Qualification Directive to consider that the persecution of ethnic Chechens from Chechnya which was solely based on membership of the group will not be repeated. The standard of Art 4.4 of the Qualification Directive has now replaced the concept of "sufficient safety from persecution" as developed in German case law for refugees who had been subject to persecution before they left their country of origin.
The case concerns the extent to which decision-makers should take into account a change of circumstances or situation in the country of origin.
Art 10.1 (b) of the Qualification Directive guarantees wide reaching protection of the freedom of religion. However, merely belonging to the Ahmadiyya religious community does not justify the granting of refugee status.