Belgium – Council of State, 27 November 2002, Nr. 113.002

Country of Decision:
Country of Applicant:
Date of Decision:
27-11-2002
Citation:
Nr. 113.002
Additional Citation:
Published in: T. Vreemd. 2003, nr. 2, 126-132
Court Name:
Council of State
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Headnote: 
The Council of State confirmed that a new element, in a subsequent application  (Art 51/8 of the Belgian Aliens Law – see comments section below) can relate to facts or situations that occurred after the last phase of the procedure in which the applicant could have submitted them and also consist of new evidence relevant to an earlier situation.

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.
Facts: 
The applicant, who declared herself born in Masisi (DRC), filed an application for asylum on 20 August 2002. According to her statements she was a minor at that time. She had based her application on the risk of facing further persecution in the DRC, where her parents had been killed in a massacre in Masisi and where she had been detained and raped by soldiers for several years.

The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) considered her application as fraudulent and manifestly ill-founded. In refusing her claim, they found:
 
1. five major contradictions;
2. ,two major lacunae regarding the essence of her account;
3. doubts regarding her nationality and age;
4. her claim to be improbable. 
 
What followed was a series of appeals, subsequent asylum applications and removal attempts.
 
On 13 November 2002 the applicant filed a third asylum application. As a “new element” she produced a written testimony dated 5 November 2002 from a missionary who had been living in East-Congo for 50 years. His testimony would, according to the applicant, prove her identity as well as that of her parents, and would prove one of the essential elements of her account, i.e. the massacre of her parents and the fact that she was the only one to survive. The Immigration Department, however, decided not to take into consideration this third application for asylum, and gave the following reasoning: “the elements must relate to facts or situations that occurred after the last phase of the procedure in which the applicant could have produced them. During the first asylum procedure those elements were already mentioned, i.e. the death of her parents. The CGRS had already taken a position regarding those elements.”
 
The applicant filed an appeal in suspension against this decision (following the procedure of extreme urgency) (old procedure; currently such appeal would be brought before the CALL).
Decision & Reasoning: 
The applicant argued that there was a violation of Art 51/8 and Art 62 of the Belgian Aliens Law. Firstly, she argued that the Immigration Department considered that no new element had been furnished, whereas a new proof of a previous situation can constitute a new element. Secondly, she argued that the Immigration Department had considered that the massacre of her parents was not a serious indication of a well-founded fear of persecution whereas this was an essential element of that fear.

The Council of State agreed with the applicant’s reasoning and gave a broader interpretation to the concept of “new elements”. The Council confirmed that a new element in the sense of Art 51/8 of the Aliens Law can relate to facts or situations that occurred after the last phase of the procedure in which the applicant could have produced them, but also that they could consist of a new proof of a previous situation. In the case at hand, the Council considered that the testimony was to be considered new proof (as it dated from after the two first asylum procedures of the applicant) of a fact that had occurred prior to the filing of the asylum applications. The testimony was to be considered as a new element within the meaning of Art 51/8 of the Aliens Law.
 
The Council of State, however, continued its analysis and considered that the Immigration Department can only reject, in the phase of the taking into consideration of an application, the “elements that are not new in the sense of Art 51/8 or that are manifestly irrelevant for determining the outcome of the asylum request, in light of the decisions that were previously taken by the competent authorities.” The Council noted that the massacre of the parents had been discussed in the course of the first asylum procedure and that the CGRS had not contested that element of the applicant’s account. However, the first asylum request had been rejected for other reasons as well. The Council of State concluded therefore that, in the assumption that the testimony that is now produced can be considered as credible, it cannot call into question the existence of the contradictions, lacunae and doubts that the CGRS had listed in its decision. The evidence that is being produced appears unable to trigger a decision that would be different than the one that had been taken.
Outcome: 
The appeal for suspension was rejected.
Observations/Comments: 
The legal provision, Art 51/8 of the Aliens Law, states:
 
“The Minister or his/her mandate holder can decide not to take into consideration an asylum application when the foreign national has previously filed the same application (…), and he/she does not present new elements that there exist, in his/her respect, serious indications of a well-founded fear of persecution (…), or serious indications of a real risk of serious harm (…). The new elements should relate to facts or situations that have occurred after the last phase in the procedure in which the applicant would have been able to present them.”