Germany - VG Trier, 7 October 2016, 1 K 5093/16.TR

The defendant’s absence before the court did not prevent the court from making a decision. The defendant had been lawfully summoned and had been made aware of a decision being possible despite her absence in accordance with s. 102 ss. 2 VwGO (Code of Administrative Court Procedure). 

The court could not find pre-persecution as a reason for the claimants’ emigration from Syria within the meaning of s. 3 ss. 1 AsylG (Asylum Law). In this respect, the claimants’ submission of the war situation generally, the endangered life and health of the family as well as a disappeared neighbour of Christian faith are to be seen as too unspecific. Therefore, initially, as per s. 15 ss.1 and s. 25 ss. 1 and ss. 2 AsylG, the defendant was rightfully denied recognition of refugee status on the grounds of the absence of a substantiated reason (s. 3b AsylG) or act (s. 3a AsylG) of persecution.

However, the defendant’s notice is unlawful, having exclusively found the non-existence of the refugee status on the basis of lacking pre-persecution without taking account of post-flight circumstances within the meaning of s. 28 AsylG. Therefore, the chamber concluded that, within the meaning of s. 3a ss. 1 and s. 3b ss. 1 No. 5 AsylG,  “from the point of view of a prudently and reasonably thinking man and after consideration of all known circumstances, upon their hypothetical return to Syria, in any event, [the claimants were threatened by] persecution due to the political opinion attributed to [them]”. This finding results from previous decisions (VG (Administrative Court) Trier, judgement of 14^th June 2016 – 1 K 1105/16.TR; VG Trier, judgement of 16^th June 2016 - 1 K 1576/16.TR), initially granting refugee status to asylum seekers irrespective of their individual circumstances, given their possible arrest and torture as identified by multiple sources of information from 2011 and 2012 (3. aa) (1)-(4)).

A danger of persecution remained in existence at the time of the oral hearing as per s. 77 ss. 1 clause 1 sub-clause 1 AsylG, justifying the claimants’ fear and the unreasonableness of a return to Syria. However, this did not follow from information regarding actually deported persons, given the lack of deportations. Rather, the likelihood of persecution upon return was judged on a forward looking basis relying on factual reports (3. bb) (1)-(3)) regarding acts of persecution against political enemies within Syrian territory (VG Regensburg, judgement of 29^th June 2016 – RO 11 K 16.30707; VG Meiningen, judgement of 27^th March 2014 – 1 K 20092/12). The possibility of human rights violations as per s. 3a ss. 1 No. 1 AsylG is not changed by the defendant’s argument that the Syrian government has a reduced interest in questioning returnees following the different composition of refugees due to the mass emigration. Equally rejected is the presumption of some courts (OVG (High Administrative Court) Nordrhein-Westfalen, resolution of 5^th September 2016 – 14 A 1802/16.A) that the Syrian government would not have the capacity to systematically persecute by reason of the mass emigration and the partial collapse of the state structure. The chamber bases its decision on the available sources of information (VG Regensburg, judgement of 19^th June 2016 – RO 11 K 16.30707) and the government’s strengthened position in the recent past. Also, doubts (OVG Rheinland-Pfalz, resolution of 15^th September 2016 – 1 A 10655/16.OVG) are unfounded as to whether the irregular emigration, the application for asylum and the long stay in a Western foreign country are in itself sufficient to find a threat of political group-persecution or whether further individual reasons are required. This follows from the fact that these already provide sufficient grounds for individual persecution and that the claimants are not concerned with group-persecution but rather “individual persecution by reason of belonging to a group” (OVG Sachsen-Anhalt, judgement of 18^th July 2012 – 3 L 147/12). In this respect, the characteristic of belonging to a group does not, on its own, trigger persecution. The decisive factor is an additional circumstance that is more or less at the forefront, shaping the degree in which persecution affects the victim. Whilst not justifying the presumption of political persecution of each person fulfilling the characteristics, it does so regarding some specific members of that group (BVerwG (Federal Administrative Court), resolution of 22^nd February 1996 – 9 B 15.96). There is no requirement of a certain level of persecution regarding members belonging to the respective group, justifying the group-persecution.

The claimants possess the named characteristics. Despite having no specific effect on the recognition of the refugee status, their characteristics are aggravated and supplemented by the fact that, as Christians and original citizens of Aleppo, viewed by the government as influenced by the opposition, the claimants belong to two target groups that are especially vulnerable (ECtHR, judgement of 15^th October 2015 – 40081/14, 40088/14, 40127/14).