Case summaries

If a subsequent application is based on “post-flight reasons” created by the applicant, he has to provide good reasons why he has become politically active or has intensified his activities.

As a rule, “post-flight reasons” which have been created by the applicant following the termination of an asylum procedure are not relevant for granting refugee status. An exception to this rule may be given if the activities which the applicant engaged in since he left the country of origin constitute a continuation of convictions which have been practiced before. However, activities which fulfil these criteria are not by themselves sufficient to constitute an exception to the rule. In addition the applicant has to provide good reasons to explain why he has become politically active or has intensified his activities after an unsuccessful earlier asylum application.

The situation in Iraq is not characterised by an armed conflict within the meaning of Section 60 (7) (2) Residence Act / Art 15 (c) of the Qualification Directive. In any case, there is no sufficient individual risk for returnees.

A Lebanese woman was recognised as a refugee after a death threat by her brother because of her way of life. The court found:

1. State protection doesn’t exist against ‘honour killings’ in Lebanon.
2. Women who do not accept discrimination and denial of rights, which are based on tradition and social circumstances in their home country, constitute a particular social group in terms of Art. 10 (2) (d) of the Qualification Directive.
3. Even a single person can be a non-state actor under Section 60 (1) sentence (4) (c) of the Residence Act (identical to Art 6 (c) of the Qualification Directive).

The Court considered the correct approach to sur place claims, having regard to Article 4 and 5 of the Qualification Directive. A difference exists between sur place activies pursued by a political dissident against his or her own government in the country where he or she is seeking asylum which may expose him or her to a risk of ill treatment or persecution and activities that were pursued solely with the motive of creating such a risk.  However, the Directive should not be interpreted to prevent a claim based on opportunism. It requires an assessment of whether the authorities in the country of origin are likely to observe and record the claimant’s activities and recognises that those authorities may realise or be persuaded that the activity was insincere and, the fear of consequent ill-treatment not well-founded. But it does not prevent a claim made on such a basis.

The CALL ruled that while the reasons for persecution given in an asylum application can be, by themselves insufficiently serious, they could, when taken cumulatively and in connection with the situation in the country of origin, justify being given the benefit of the doubt.

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 1951 Refugee Convention should not be interpreted so that a refugee sur place who has acted in bad faith is excluded from its protection and can be deported to his home country notwithstanding that he or she has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although such an applicant’s credibility is likely to be low and the claim must be rigorously scrutinised, he or she is still entitled to the protection of the Convention if a well-founded fear of persecution is accepted.