Case summaries
The 1951 Refugee Convention does not provide protection in respect of claims of conscientious objectors who feared imprisonment for their refusal to undertake military service where there is no alternative service offered in national law. This was the position even if that objection is to all forms of military service and is absolute. The right to conscientious objection was not yet protected in international human rights law and was yet to emerge as a principle of customary international law. A claim may succeed if the applicant would be required, in the course of military service, to conduct military action that breached the basic rules of human conduct or if the punishment they would receive for refusal to serve was discriminatory or disproportionate. Secondly, when assessing whether persecution was “for” a Convention reason the decision-maker should ask the question of “what was the real reason for the persecution?”. The decision-maker should not limit the enquiry to the persecutor’s motivation but should look for the effective reason or reasons.
This case considered of the support available for asylum seekers. It was held that the system in place was not procedurally fair and that Art 3 of European Convention on Human Rights (ECHR) was engaged. Judicial review of the refusal was not an adequate remedy for refusal of support where the administrative procedure was unfair and inadequate.
The applicant was the leader of the PKK and the most wanted person in Turkey. He was arrested and sentenced to the death penalty. Breaches of Articles 3, 5 and 6 were found with regard to his detention, the imposition of the death penalty and his rights as the defence to a fair trial.
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.