Finland - Supreme Administrative Court, 28 June 2013, KHO:2013:119

Country of Decision:
Country of Applicant:
Date of Decision:
28-06-2013
Citation:
KHO:2013:119
Court Name:
Supreme Administrative Court
National / Other Legislative Provisions:
Finland - Aliens Acts - Section 5 § 1
Finland - Aliens Act - Section 88 § 1
Finland - Aliens Act - Section 88a
Finland - Aliens Act - Section 88e § 1
Finland - Aliens Act - Section 146
Finland - Aliens Act - Section 147
Finland - Aliens Act - Section 148
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Headnote: 

A Russian Federation citizen, originally from Chechnya, had applied for international protection in Finland due to threat of persecution based on his/her family’s political activities. The Applicant had been diagnosed with post traumatic stress disorder because of torture. According to the Immigration Service, he/she could resort to internal relocation as specified in Section 88e of the Aliens Act and there were no grounds for granting international protection. The Administrative Court rejected the appeal. The Supreme Administrative Court took the view that the Applicant has had close ties to the Komi Republic and had no problems with the authorities while living there. Therefore he/she can be expected to rely on internal relocation to another part of the country, as specified in Article 88e of the Aliens Act and he/she was not in need of international protection.

Facts: 

The Applicant applied for international protection because his/her family was well known in Chechnya. Some of his/her relatives fought in Chechnya’s wars. The Applicant’s brother, B, belonged to rebel fighters and was killed by the authorities. The Applicant’s brother, C, acted as a Deputy Minister of the Ichkeria Republic from 1996 to 1998. The Applicant and his/her brother have been captured several times after 1999 and they have been assaulted and tortured. Since 2009 the Applicant has been in the sights of the Chechnya’s authorities because they want to capture his/her son, D. D has not been caught, which has led the arrest and assault of the Applicant. The Applicant received death threats but was released on bail on condition that his/her son contacts the authorities, that he/she withdraws the application to prosecution authorities and that the Applicant reports on a daily basis.   After being released, the Applicant moved to the Komi Republic from where he/she obtained a Finnish visa. The Immigration Authority took the view that he/she might be exposed to serious harm if returning to Chechnya. Because he/she had, however, for several years lived part of the year in the Komi Republic, he/she could resort to internal relocation in his home country, as specified in Section 88 e of the Aliens Act and there were no grounds for granting international protection.

An appeal was taken to the Helsinki Administrative Court regarding the decision of the Immigration Service. The Appellant pointed out in the appeal that, taking into account the experiences and arrests of the Appellant and those of his/her close family members also outside Chechnya in other parts of the Russian Federation, it is clear that there is no area in the Russian Federation which would be safe for the Appellant to live in.  According to the Appellant, the Immigration Service disregarded and failed to consider the fact that after the persecution which started in October 2009 leading to his/her flight from the country, it had not been safe for him/her to settle in Kom. The Administrative Court rejected the appeal. According to law, persons who are relatives of today’s active rebels are in the most vulnerable position, but the Appellant had not been able to name with certainty the party which has persecuted him/her and he/she himself/herself had not been  socially, politically or religiously active. In light of what was submitted, the Appellant cannot be seen to have such a profile that it would be likely that he/she would be of special interest to the Russian authorities or FSB and thus in danger of being persecuted by them beyond Chechnya. As specified in Section 88 e of the Aliens Act, it can be reasonably expected that the Appellant can permanently settle down in the Komi Republic, to which he/she has a longstanding and close relationship. No factors came to light such as to make it impossible for the Appellant to also live in the Komi Republicin the future  without any grounds to fear persecution or being in danger of suffering serious harm.  No grounds had been raised for granting a residence document on compassionate or other grounds as specified in Section 52 Article 1 of the Aliens Act as the Appellant has access to treatment for his/her psychological problems in his/her home country.

The Appellant requested leave to appeal to the Supreme Administrate Court and it was granted. The Supreme Administrative Court did not grant permission to stop refoulement. The UN Committee Against Torture granted permission to stop refoulement but the Appellant had already been refouled before this information was received.

Decision & Reasoning: 

The Supreme Administrative Court rejected the appeal. The final decision of the Administrative Court remains unchanged. The Supreme Administrative Court took the view that the Appellant had close ties with the Komi Republic after living there permanently and for a long time as far the authorities were aware. Whilst living there he/she had no problems with the authorities. Taking into account the conditions in the Komi Republic and the fact that the person in question had no political profile nor is his/her family politically active at the moment, it was not credible that he/she would be of interest to the authorities in the future either. Therefore it is possible for him/her to also settle down in that area in the future, he/she can be expected to rely on internal relocation to another part of his country as specified in Section 88 e of the Aliens Act and he/she is not in need of international protection. The Court took the view that it is possible for the Appellant to receive the healthcare he/she needs in his/her own country as well. Therefore there are no grounds for granting a residence document based on compassionate grounds as specified in Section 52 of the Aliens Act.

Outcome: 

The Supreme Administrative Court rejected the appeal.

Subsequent Proceedings : 

A complaint was made to the UN Committee Against Torture which prohibited refoulement after the adverse decision by the Helsinki Administrative Court. After the decision of the Supreme Administrative Court, the Appellant applied to the UN Committee Against Torture for a new injunction to stop refoulement which was granted but the Appellant had already been refouled when this information was received.

Other sources cited: 

HE 166/2007 vp, UNHCR:n (Guidelines on International Protection: Internal Flight or Relocation Alternative within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees); Euroopan neuvoston ihmisoikeusvaltuutettu Thomas Hammarbergin 24.11.2009  ja 6.9.2011päivätyt raportit; U.S. Department of Staten vuotta 2011ja 2012 koskevat raportit; Tanskan maahanmuuttopalvelun lokakuussa 2011 julkaisema raportti (Chechens in the Russian Federation, Report from Danish Immigration Service's fact finding mission to Moscow and St.Petersburg, the Russian Federation, 12 to 29 June 2011) nro 4/2011 ; Ruotsin Migrationsverketin 25.2.2011 julkaisema raportti; Human Rights Watchin tammikuussa 2012 julkaistu raportti; Norjalaisen Landinfon tammikuussa 2013 julkaiseman raportti (Temanotat: Tsjetsjenia: Sikkerhetssituasjonen)

Case Law Cited: 

ECtHR - I.K. v Italy, Application No. 2964/12

ECtHR - Bajsultanov v Austria, Application No. 54131/10