Czech Republic - Supreme Administrative Court, 30 September 2008, S.N. v Ministry of Interior, 5 Azs 66/2008-70

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Headnote: 

This case concerned an appeal against the refusal of international protection to an Imam from Kazakhstan who claimed persecution from state actors because of his religion. The Ministry of Interior (MOI) and the Regional Court considered that persecution had not been established, and that the behaviour of the authorities had not been motivated by the applicant’s religious belief of “pure Islam” (this is a term that is used to distinguish themselves from other Muslims). However, the Supreme Administrative Court (SAC) disagreed and found that due to the specific circumstances of the applicant (an Imam) there was a risk of persecution. The Court also stated that refugee status can involve risk that is motivated by more than one reason, so long as one of those reasons is a persecution ground.

Facts: 

The applicant was an Imam of “pure Islam” in Kazakhstan. The applicant claimed to have suffered persecution by the police and Board of National security since 1998. He was arrested in 2004 and in 2006. During the second arrest he was beaten. In 2005 he received a letter from a State Attorney informing him to stop practicing “pure Islam” or he would be punished. Moreover, the applicant stated that his problems with the police (e.g. home searches, interrogation, calls from the prosecution service) were caused by his refusal to register his religious organisation. He left Kazakhstan in 2006 and applied for international protection in the Czech Republic. The MOI did not believe that the applicant was an Imam, because his knowledge of Hadis and Sharia was limited. The application was dismissed. The applicant appealed to the Regional Court who dismissed the appeal and confirmed the decision of the MOI. The applicant, therefore, brought a cassation complaint to the Supreme Administrative Court (SAC).

Decision & Reasoning: 
The SAC considered the issue of the burden of proof. The Court confirmed that an applicant for international protection had to satisfy the burden of proof as regards  his/her own statements / claims. However, the MOI also has a responsibility to investigate and provide relevant information that might support or challenge the statements made. In cases where there is a lack of evidence (such as documents) and the only evidence is the applicant’s statement, then assessment of the applicant’s credibility is crucial. The Court further stated that the MOI could not refuse to accept the alleged facts solely for the reason that a different course of events, or an alternative explanation than the one presented by the applicant, was possible. The MOI was obliged to consider all of the relevant evidence and circumstances with respect to Art 4.3 to 4.5 of the Qualification Directive and if necessary apply the principle of the “benefit of doubt.”

The MOI on the one hand concluded that the applicant was illegally forced by the police to register his religious group and excessive force had been used, but on the other hand found that it was not the result of his religious beliefs only.

The SAC accepted that the illegal police procedure might not have been driven solely by the applicant’s religious beliefs. However, the actors of persecution are often lead by more than one motive. The plurality of motives of the authorities did not mean that the applicant did not meet the grounds of persecution and that he should be disqualified from refugee status. There is no need that race, religion, nationality, membership of a particular social group, political opinion or gender should be the only and exclusive grounds as to why the applicant is persecuted.  It is enough if one of them is the decisive ground to cause serious harm or to refuse protection. In this case the causal nexus between persecution and grounds of persecution had been fulfilled.
 
Outcome: 

The appeal was successful and the Regional Court decision annulled.

Observations/Comments: 

Case available at the website of the Supreme Administrative Court - www.nssoud.cz

Case Law Cited: 

Australia - Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Czech Republic - 2 Azs 71/2006-83 (Supreme Administrative Court)

Germany - Federal Administrative Court, 9 C 91.89

UK - Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11