Belgium – Council for Alien Law litigation, 11 November 2007, Nr. 4.731

Country of Decision:
Country of Applicant:
Date of Decision:
11-11-2007
Citation:
Nr. 4.731
Court Name:
Council for Alien Law litigation
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Headnote: 

This case concerned subsequent applications for asylum. The CALL ruled that the principle of res judicata (matter already judged) is not applicable in a case where the subsequent application is not based on the same set of facts as the earlier application.

Facts: 
This case concerned the asylum application of a family consisting of the applicant, his wife and two children of Rwandan nationality.

The applicant had filed his first asylum application in 2005; a year later he filed a second one. In the course of the procedure he retracted his statements regarding his identity and certain facts that were given in his first application. The father’s application was based on a number of elements as set out below:

(1) requests he had received to testify before the Gacaca tribunals in Rwanda and before the International Criminal Tribunal for Rwanda (ICTR), and the risk of persecution that followed because of those requests;
(2) a court case that he had commenced against soldiers that had stolen money from him, resulting in telephone threats and stone throwing at him;
(3) a court case that he had commenced against the Minister of Home Affairs regarding a conflict over a plot of land;
(4) ethnic discrimination regarding a tax issue;
(5) ethnic discrimination regarding the closure of his shop.

The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) analysed the five limbs individually and by predominantly referring to the decision taken in the first asylum claim rejected the application. The applicant lodged an appeal against this decision before the CALL. (The applications of the other members of the family were based on the same set of facts and were also rejected by the CGRS. They all filed an appeal before the CALL; the appeals were examined jointly.)
Decision & Reasoning: 
The CALL noted that the CGRS had rejected the applications partly by referring to the decision taken in the first asylum claim and held:
 
“While the principle of res judicata would normally not allow questioning of issues that have already been judged in the context of earlier asylum applications, this principle is not applicable in the present case because the present application is not based on the same set of facts as the first application. Indeed, (the parents) have recognised that they made false declarations in their first application regarding their identity and regarding several facts upon which they had relied, and they have explained the reasons why they acted in that manner. The CGRS could legitimately infer from such a fraudulent precedent an increased requirement in terms of the establishment of facts, but it could not – without committing an error of appreciation – consider that it had already examined the facts advanced by the applicants in an earlier application, given that the applicants’ story in their second application was noticeably different from the one they told initially.”

The CALL then analysed the asylum application and concluded that the problems invoked were sufficiently proven. In the context of that examination, the CALL criticised the CGRS on another point, when it considered that:
 
“In artificially dissociating the examination of the different aspects of the case, the CGRS failed to examine them in their entirety, not allowing itself to see the potential causal link between them or to understand their potential cumulative effect.”
Outcome: 

The applicant and his family were granted refugee status.