Case summaries
The Council also found that the Immigration Department can only reject, at the phase of taking into consideration of an application, the elements that are not new in the sense of Art 51/8 or that are manifestly irrelevant.
After the revocation of his residence permit due to his religious activities (alleged links with a fundamentalist organisation), the applicant was detained for a period of 26 days and later deported from Bulgaria. The applicant claims to have been refused access to a lawyer and to have been detained incommunicado. He also claims that his detention and deportation was an interference with his right to family life and right to religious freedom.
When assessing an application for refugee status, what is important is whether the acts of persecution were carried out for the reasons identified in the Geneva Convention, and not whether or to what extent the victim of persecution can be identified with those reasons.
Fear of persecution within the meaning of Article 1A(2) of the Geneva Convention need not mean that persecution is certain or even probable. Recognition of refugee status is already justified where there are reasonable grounds for asserting the possibility of persecution. “Possibility” means that persecution may take place although it is neither certain nor probable, and the “reasonable grounds” requirement indicates the need to establish real and objective evidence of the risk of persecution. The plausibility of the threat is shown by the situation in the country of origin of the person applying for refugee status as well as that person’s experience to date.
One cannot demand recognition of refugee status pursuant to Article 1A(2) of the Geneva Convention where protection can be provided pursuant to Article 1D of the Convention. The phrase used in the first sentence of Article 1D of the Convention – “persons who are at present receiving… protection or assistance” – relates to those Palestinians who could avail themselves of protection on the date of the Convention, i.e., on 28 July 1951., and to their direct descendants born after that date, provided they remain under the mandate of UNRWA (United Nations Relief and Works Agency). “Protection or assistance” for Palestinians is provided solely in areas under the UNRWA mandate. Therefore, exclusions from protection under the Geneva Convention relate only to those Palestinians who reside permanently in those areas.
The applicants were unlawfully detained and had no effective remedy to challenge their detention. There was a finding that they had been collectively expelled, given the context of their expulsion along with many others of the same nationality, and as their individual circumstances had not been adequately taken into consideration.
Where the actors of persecution feared are themselves state agents consideration must still be given to whether the applicant can avail himself of protection, but this assessment must be made in context. There will be a spectrum of cases between, on the one extreme, those where the only ill-treatment is by non-state actors and, on the other extreme, those where the state itself is wholly complicit in the ill-treatment.