Belgium - Council for Alien Law Litigation, 17 April 2020, n°235 277
Country of Decision:
Country of Applicant:
Date of Decision:
17-04-2020
Citation:
(Belgium) Council for Alien Law Litigation, n°235 277, 17 April 2020
Court Name:
Council for Alien Law Litigation
Keywords:
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A (2)
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 4
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 4
National / Other Legislative Provisions:
Articles 48
51 and 57 15 December 1980 Law (Loi du 15 décembre 1980 sur l’accès au territoire
le séjour
l’établissement et l’éloignement des étrangers)
51 and 57 15 December 1980 Law (Loi du 15 décembre 1980 sur l’accès au territoire
le séjour
l’établissement et l’éloignement des étrangers)
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Headnote:
The fact that an asylum seeker has already been persecuted in the past or has been subject to direct threats of persecution, was considered as a well-founded argument to believe that the applicant would face the risk to be persecuted under Article 1, Section A §2 of the 1951 Refugee Convention.
Facts:
The applicant, a Guinean national with Fulani origins, appealed against the decision of the Commissioner General for Refugees and Stateless Persons (CGRS) on inadmissibility of a subsequent international protection application.
The applicant was already denied refugee status and subsidiary protection by CGRS in 2014. He claimed that because of his political opinion and activism within the opposition party in Guinea his family and himself feared (the risk of) persecution. The CGRS disputed the credibility of the applicant’s personal narrative and of his documents. Consequently, the applicant’s appeal before the Council for Alien Law Litigation (CALL) was rejected.
In 2014, the applicant applied a second time for international protection with new elements and documents but the CGRS declared the second application inadmissible. The applicant appealed against this decision before the CALL. The Council decided to annul the CGRS’ decision and sent it back to the CGRS.
The applicant submitted documents with new elements about his psychological and medical conditions that could have hampered his personal narrative due to PTSD symptoms. The CGRS rejected these new elements based on Article 57/6/2 of the 15 December Law stating that they were not increasing the chance to be granted international or subsidiary protection in Belgium and concluded that the application was inadmissible. The applicant brought that decision in front of the CALL.
Decision & Reasoning:
The CALL recalled that there was an obligation to assess the new elements and documents submitted by the applicant. The applicant disputed the CGRS’s decision based on two legal provisions: the abuse of authority under Article 57/6 §3 of the 15 December 1980 Law and the error of appreciation in violation to Articles 48 to 48/7 and 57/6/2 §1 of the 15 December Law. The applicant requested to be granted international or subsidiary protection or at the last resort, to annul the CGRS’ decision.
Firstly, the CALL recalled that the burden of proof has to be carried out by the asylum seeker in accordance to Article 48/6 §1 and §4 of the 15 December 1980 Law and Article 4 §1 of the 2011/95/EU Directive. Secondly, the CALL pointed out that the Commissioner in charge of the case has the obligation to assess all the elements submitted by the applicant and justify his/her decision.
Finally, the CALL recalled that the disputed question was the fair assessment of the new elements submitted by the applicant, in order to conclude if there were additional elements that increased his chances to be granted international protection.
The CALL focused its assessment on his medical and psychological certificates delivered by professionals treating regularly the applicant. These certificates attested to the chronic PTSD symptoms and the proof of previous sexual violence that he declared having suffered in Guinea. Considering those medical reports, the CALL found the applicant’s story to be credible and indicative of his good faith.
The CALL concluded that, under Article 48/7 of the 15 December 1980 Law, the fact that an asylum seeker has already been persecuted in the past or has been subject to direct threats of persecution, was considered as a well-founded argument to believe that the applicant would face the risk to be persecuted under Article 1, Section A §2 of the 1951 Refugee Convention.
The applicant was granted international protection.
Outcome:
Appeal granted.
Observations/Comments:
This summary was drafted by Clémentine Le Roy, LLM student at the Gent University.
