Case summaries
The Court recognised the Applicant as a refugee because he would be at risk of persecution due to his political opinions upon returning to his home country.
- Refugee status was recognised because of a risk of persecution in case of return to Vietnam due to “exposed” political activities in exile.
- Recognition as a refugee was not excluded by Section 28 (2) of the Asylum Procedure Act. Contrary to the case law of the Federal Administrative Court, political activities in exile do not constitute “circumstances which the applicant has created by his own decision” within the meaning of Art. 5.3 of the Qualification Directive , but fall under Art. 5.2. Therefore, Member States have no competence to regulate the meaning of such "activities" by applying Art 5.3. This is also demonstrated in the differentiation in Art. 4.3 (c) and (d). Art. 5 (2) of the Qualification Directive which essentially corresponds with the new Section 28 (1a) of the Asylum Procedure Act, although the term "activities" has not been adopted in the latter provision.
If a subsequent asylum application is based on circumstances which the applicant has created by his own decision, refugee status shall not be granted if the applicant was able to develop his own political conviction at the time of the (termination of the) preceding asylum procedure. This can be assumed to be the case at the age of 16, or at the age of 18 at the latest.
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 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.