Belgium - Council for Alien Law Litigation, 12 April 2012, Nr. 100873

Country of Decision:
Country of Applicant:
Date of Decision:
12-04-2012
Citation:
RvV, arrest nr. 100.873
Court Name:
Council for Alien Law Litigation (GOETHALS)
National / Other Legislative Provisions:
UNCRC - Art 12
Belgium - de Grondwet / la Constitution (Constitution) - Art 144
Belgium - de Grondwet / la Constitution (Constitution) - Art 145
Belgium - de Grondwet / la Constitution (Constitution) - Art 22
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 48/3
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikle 48/4
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Headnote: 

The Applicants' applications for asylum were rejected as they did not tell the truth about their former residence(s) before moving to Belgium, and it could therefore not be ruled out that they were also nationals of or enjoyed protection status in another country. However, they could not be deported to Afghanistan, even though it was at least established that they were Afghan nationals.

Facts: 

The Applicants are ethnic Sikhs and Afghan nationals. They left Afghanistan due to humiliation and abuse from the Muslim population, and pressure to convert. Their first asylum application was refused as the asylum authorities did not believe that they had been resident in Afghanistan. They filed a second asylum application, submitting their Afghan passports, in addition to other documents. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) found that these new elements (passports) were not sufficient to dispel doubt concerning their recent period of residence in Afghanistan.

Decision & Reasoning: 

First of all, the judge found that the passports presented showed that the Applicants were Afghan nationals and that this fact was not contested. It was also not contested that they belonged to the ethnic Sikh minority. The judge confirmed that the Applicants had a risk profile and that Sikhs suffer persecution and discrimination. Partly because it could not be established that the Applicants had family or a network in Afghanistan they could resort to for help, the judge concluded that they could not return to Kabul, Afghanistan.

The Court furthermore found that the Applicants had not fulfilled their duty to cooperate, as they had not told the truth about their previous place(s) of residence before coming to Belgium. Just because their Afghan nationality was uncontested did not mean that they were not nationals of another country too or that they did not enjoy protection status in another country, in which case refugee status could be recognised only if the Applicants could not or did not want to invoke the protection of the countries of which they were nationals because of a well-founded fear of persecution.

The Court also found that the Singh v. Belgium judgment of the ECtHR cited by the Applicants did not permit them to deliberately conceal their true places of residence and to leave the Belgian asylum authorities to investigate this matter alone. Furthermore, the Applicants submitted no meaningful documents relating to their previous place(s) of residence.

Outcome: 

The application was rejected, and the decision by the Office of the Commissioner General for Refugees and Stateless Persons was upheld. Recognition of refugee status and subsidiary protection were refused.

Observations/Comments: 

In this judgment, the Court appears to be ruling consistently with the Singh judgment, in which the ECtHR accused the Belgian asylum authorities of not investigating a possible breach of Article 3 of the ECHR in the case of return after deciding that the declarations of the asylum seeker were not credible.

(EDAL translation: '100. The Court notes that neither the CGRS nor the Council for Alien Law Litigation asked themselves, even as a subsidiary question, whether the Applicants were at risk within the meaning of Article 3 of the Convention. It notes that this examination was eclipsed at the CGRS by the investigation into the Applicants' credibility and doubts as to the veracity of their statements (Paragraph 13). Although it is evidently within the asylum authority's discretion not to lend full credence to the Applicants' statements and to doubt their nationality and the route they had taken, the Court observes that the CGRS carried out no further investigation, e.g. authenticating the identity documents they presented, which would have enabled it to verify or dismiss with more certainty the risks in Afghanistan.')

In this case, the judge did find that the Applicants were at risk of persecution in relation to Afghanistan and that return to Afghanistan in these circumstances was not possible, even though he believed that the Applicants had not told the truth about their previous place(s) of residence. The judge thus appears to be including a 'non-refoulement clause' in his judgment. Such clauses in asylum judgments fall within the competence of the CGRS, but are (now) available (since the amendments to statute in 2006) in a very limited number of cases only (e.g. withdrawal of refugee status). The questions are firstly what the legal value is of judges including such clauses and secondly the extent to which compliance therewith will be enforceable by the Aliens Office, which is responsible for policy on return.

Other sources cited: 

G. S. GOODWIN-GILL, The Refugee in International Law, (second edition), Oxford University Press, 1996, 43–44

CGVS, Cedoca, Subject Related Briefing 'Afghanistan-  Veiligheidssituatie Hindoes en Sikhs'['Afghanistan security situation for Hindus and Sikhs'], 11 April 2012

UNHCR, Request for information on Afghans in India

UNHCR, Afghan Hindus and Sikhs: Their Situation and Recommendations for the Assessment of Claims,  July 2011,

Country guidance regarding children in Afghanistan,6 July 2011

Case Law Cited: 

ECtHR - Singh and Others v. Belgium, Application No. 33210/11

Belgium - RvV, 13 April 2011, No. 59632

Belgium - RvV, 13 April 2011, No. 59631

Belgium - RvS, 29 March 2010, No.202487

Belgium - RvS, 25 March 2010, No. 202357