Greece - Administrative Court of Appeal, 1 March 2011, JA v Minister for Citizen Protection, 91/2011

Country of Decision:
Country of Applicant:
Date of Decision:
01-03-2011
Citation:
91/2011
Additional Citation:
http://www.dsanet.gr/1024x768Auth.htm
Court Name:
Athens Administrative Court of Appeal, Chamber F
National / Other Legislative Provisions:
Greece - Άρθρα 25 παρ. 2 του ν. 1975/1991 (Art 25(2) of Act 1975/1991)
Greece - Αρθρα 1 Σύμβασης της Γενεύης 1951 ( Νομοθετικό Διάταγμα 3989/1959 Α’ 201) (Art 1 1951 Convention (Legislative Decree 3989/1959 A201))
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 4(4)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 4(5)
Greece - Προεδρικό Διάταγμα 96/2008 (Presidential Decree) Art 31
Greece - Προεδρικό Διάταγμα 96/2008 (Presidential Decree) Art 33
Greece - Αρθρο 52 Προεδρικό Διάταγμα 18/1989 (Art 52 of Presidential Decree 18/1989)
Greece - Αναγκαστικός Νόμος 389/1968 (Φύλλο Εφημερίδας Κυβερνήσεως 125 Τεύχος Α) (Emergency Act)
Greece - Άρθρα 49 του Νόμου 3900/2010 “Εξορθολογισμός Διαδικασιών και επιτάχυνση της Διοικητικής Δίκης και άλλες διατάξεις” (Φύλλο Εφημερίδας Κυβερνήσεως 213 Τεύχος Α) (Art 49 of Act 3900/2010)
Greece - Άρθρα 50 του Νόμου 3900/2010 “Εξορθολογισμός Διαδικασιών και επιτάχυνση της Διοικητικής Δίκης και άλλες διατάξεις” (Φύλλο Εφημερίδας Κυβερνήσεως 213 Τεύχος Α) (Art 50 of Act 3900/2010)
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Headnote: 

This case concerned service of the initial negative decision against an asylum application where the notice was served on the foreign applicant asylum seeker without specifying the language in which the applicant was informed of its content.  The court rejected an application for suspensive effect of the decision rejecting the asylum application in view of the pleas used by the applicant – of Palestinian origin – that he left his country for economic reasons, since there is no evidence that there is a risk of persecution should he return to Palestine, nor have any of the conditions for asylum on humanitarian grounds been met. The possible disruption to the lifestyle the applicant has created for himself whilst working in Greece does not constitute a reason to suspend any of the acts which form part of the asylum application examination procedure. 

Facts: 

The applicant, who declared himself to be of undefined Palestinian origin, left his country on 25.05.2007 and, having crossed Turkey, he illegally entered Greece on 05.06.2007. On 03.08.2007 he submitted an application for asylum, citing economic grounds. His application was rejected by the Chief of the Hellenic Police on the grounds that the objective and subjective elements of a well-founded fear of persecution do not apply in his case, and there is no evidence that he suffered or will suffer individual persecution by his country's authorities. This decision was served on the applicant on the 08.09.2007 and no appeal was lodged within the allowed time limit. The appeal lodged on 13.08.08 was implicitly rejected by the General Secretary of the Ministry of Interior. On 17.07.2009 the applicant appealed to the Council of State to give suspensive effect to implementation of both the 05.09.2007 decision by the Head of the Security and Order Branch of the Hellenic Police Command, which was the first instance rejection of his application for asylum, and also of the implicit rejection by the General Secretary of the Ministry of Interior of his 13.08.2008 appeal.  He petitioned for those same acts to be annulled. In that petition the applicant claimed, inter alia, that the service of the notice rejecting his asylum application was not lawful and, specifically, that he was not informed of its contents in a language he understands, in violation of Article 3(3) of Presidential Decree 61/1999; furthermore, that decision was delivered to the applicant along with the Asylum Seeker Card (pink card) of  3-8-2007 (valid from 03/08/2007 until 03/02/2008). The delivery of the above mentioned card resulted in the applicant having good reasons to believe that he was under no obligation to proceed to any action until his asylum seeker card's (pink card) expiration date. As soon as a lawyer told the applicant why his application to renew the said permit had been rejected, he submitted the appeal of 13.08.08 against the 05.09.2007 decision by the Head of the Security and Order Branch of the Hellenic Police Command which was a first instance rejection of his application to be granted asylum. The case was referred to the Administrative Appeal Court of Athens by the Council of State, to which the appeal had initially been submitted.

Decision & Reasoning: 

A) As ruled by the provisions of Article 1A(2) of the 1951 Convention as applicable, an alien who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity, that there are specific facts which cause him to have a well-founded fear of persecution for reasons of race, religion, nationality, social group or political opinion. If, in the proceedings before the Administration, the person concerned has not submitted any claims which are substantive in the above sense, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited, but these do not establish grounds for protection status under the 1951 Convention, then there is no obligation to give specific reasons for rejecting the application for asylum. 

B) The contested act of the Head of the Security and Order Branch of the Hellenic Police Command was served on the applicant on 08.09.2007 and the relevant proof of service records that the applicant was informed “in a language which he understands” about the content of the act and his right to lodge an appeal against it within 10 days. However, in view of the fact that the language in which the applicant was informed about the act's content was not specified, the application for annulment which he submitted on 10.07.2009 was not manifestly inadmissible as being clearly out of time, nor was it inadmissible because he had not previously submitted an administrative appeal within the prescribed time, so there is no case for rejecting the appeal in question for those reasons pursuant to Article 52(7) of Presidential Decree 18/1989.

C) When considering its judgment the Court took into consideration the fact that the applicant, during his initial examination, stated via an interpreter that he left his country for economic reasons (seeking employment); in other words, for reasons which do not justify offering refugee status or protection on humanitarian grounds. However, in the application in question the applicant claims, vaguely, that his case fulfils the conditions set down by the 1951 Convention and the 1967 New York Protocol for determining refugee status. Thus, there is no clear risk of the applicant being persecuted if he returns to Palestine, and no facts are presented regarding humanitarian status, so there is no case for giving suspensive effect on those grounds. Furthermore, possible disruption to the standard of living the applicant achieved whilst working in Greece is also not a reason for giving suspensive effect to an action which, as in this case, was not served in compliance with common law relating to aliens, but which forms part of the asylum application examination procedure. 

Outcome: 

The application for suspensive effect was rejected given that the invoked grounds for annulment had no clear basis. 

Observations/Comments: 

Athens Administrative Court of Appeal, Chamber F Annulment Formation in Council (2011)

(Judges: Dimitroula Mavrommati, President of the Administrative Court of Appeal; Georgios Skouloudis and Eirini Nanou-Skenderi, Appeal Court Judges. Rapporteur: G. Skouloudis)

Case Law Cited: 

Greece - Council of State Suspension Committee, 131/2009

Greece - Council of State Suspension Committee, 853/2009

Greece - Council of State, 1394/2009

Greece - Council of State, 4044/2009

Greece - Council of State, 1465/2010