Case summaries
When medico-legal evidence of torture is provided by specialists and found credible it is incumbent on the Migration Board to put forward evidence that there is no further risk of torture in the relevant country.
Subsidiary protection can only be granted when the 1951 Refugee Convention is not applicable.
The CALL ruled that, if the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejects an asylum request because “the applicant has a right of residence in a safe third country,” this should not be seen as an application of the concept of “safe third country” as contained in Art 26 and 27 of the Asylum Procedures Directive.
The Administrative Court held that the results of language analysis alone, contradicting the applicant’s description of events, cannot be seen as sufficient proof of the applicant’s place of residence if no other facts have been presented to support the result of the language analysis.
The situation of generalised violence resulting from a situation of internal armed conflict ended after the victory of the Sri Lankan army over the LTTE in May 2009. Furthermore, the fact that the applicant belonged to the Tamil community was not sufficient to justify his fears of persecution considering the situation which prevails in Sri Lanka, which cannot be seen as characterising a situation in which the destruction of a specific ethnic group is pursued, since the civilians of Tamil origin are not targeted for persecution by the governmental authorities solely for reason of their ethnic origin.
Even if it is assumed that an internal armed conflict is taking place, a serious individual risk can only be established if the degree of indiscriminate violence which is characteristic of the conflict has reached such a high level that any civilian is at risk of a serious individual threat simply by his or her presence in the region.
The suicide attacks and bombings typical of Iraq and also of the hometown of the applicants can be classified as acts of indiscriminate violence. However, a density of danger as it is necessary for the assumption of a serious and individual risk cannot be established. Nor do the applicants possess individual characteristics which result in an increased risk for them when compared to other members of the civilian population.
Subsidiary protection was granted on grounds that the applicant, from Iran, could be at risk inhuman or degrading treatment. The applicant based his asylum claim on the political activities of his brother in his country of asylum, as well as his own participation in protests in Iran. The Court found that after having spent two years in Finland as an asylum seeker it was likely that the applicant would be of special interest to the Iranian authorities.
The applicant is not entitled to protection from deportation within the meaning of Section 60 (7) (2) of the Residence Act / Art 15 (c) of the Qualification Directive as the levels of indiscriminate violence in his home area are not characterised by a sufficient "density of danger".
Where the situation described in Art 15(c) of the Qualification Directive does not occur in all parts of the country of origin, it must be assessed in respect of the distinct area of the country from which the applicant originates.
The facilitated standard of proof under Art. 4.4 of the Qualification Directive may be applied to the examination of subsidiary protection. Under German law, subsidiary protection is not excluded on the ground that the applicant is a “danger to the community”.