Greece - Council of State, 22 March 2011, Application No. 886/2011

Country of Decision:
Country of Applicant:
Date of Decision:
22-03-2011
Citation:
Application No. 886/2011
Court Name:
Council of State, Chamber D
National / Other Legislative Provisions:
Greece - Άρθρα 25 παρ. 1 του ν. 1975/1991 (Art 25(1) of Act 1975/1991)
Greece - Άρθρα 2 του νόμου 2452/1996 (Art 2 of Act 2452/1996)
Greece - Σύμβαση της Γενεύης 1951 Νομοθετικό Διάταγμα 3989/1959 (Geneva Convention 1951 Legislative Decree)
Greece - Αναγκαστικός Νόμος 389/1968 (Φύλλο Εφημερίδας Κυβερνήσεως 125 Τεύχος Α) (Emergency Act)
Greece - Presidential Decree No. 61/1999
Greece - Law 1782/1988
Greece - Legislative Decree 53/74
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Headnote: 

A foreigner who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity and in an objectively reasoned way, that there are specific facts which cause him to have a fear of persecution for reasons of race, religion, nationality, social group or political opinion. If such substantive claims have not been submitted, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited but these do not establish grounds for refugee status, then there is no obligation to give specific reasons for rejecting the application for asylum. The “Handbook on Procedures and Criteria for Determining Refugee Status” issued by the UN High Commissioner for Refugees is non-binding in nature but contains “best practice” for the relevant authorities when examining asylum applications and, in that way, sets out “soft law”. Granting a residence permit on humanitarian grounds falls within the broad discretionary powers of the relevant authority; but it can, exceptionally, be obligatory if the foreigner would – should he be repatriated to the country of origin – be at risk of torture or other inhuman or degrading treatment or punishment.

Facts: 

The Applicant entered the country illegally and on 18.10.2006 he submitted an application to be recognised as a refugee. When interviewed by the Police Service (in Bangla, through an interpreter) he stated that he was a Muslim and that he left his country because of the prevailing poverty, in order to seek employment. The application was rejected by decision 95/58007/22.11.2006 by the Chief of the Security and Order Branch of the Hellenic Police Headquarters. The Applicant lodged an appeal against this on 25.11.2006 citing “a well-founded fear of persecution in [his] country of origin”. Before the Asylum Committee (which also interviewed him via an interpreter) the Applicant stated, as reported verbatim in the relevant minutes of 26.3.2007, inter alia, that he “was a Muslim but changed his religion because he was taught about Christianity. He is a baptised Christian. As he stated, he will be at risk in Bangladesh because of his change of religion. He studied the Bible in North Korea.” The contested act, which followed the Asylum Committee's unanimous negative recommendation, rejected the appeal because the Applicant's claims during the administrative process were contradictory and unfounded since he had stated, in his initial application, that he left his country for economic reasons but then, before the Asylum Advisory Committee, he stated (without being able to justify his claims) that he was at risk of persecution because of changing his religious beliefs. It was held that the Applicant left his country for economic reasons and that he was using his asylum application to facilitate his stay in the country in order to find employment and improve his standard of living.

Decision & Reasoning: 

The Council of State ruled that the application in question, with its content as set out above, should be dismissed in its entirety. This was because the Applicant's statement to the police authorities at the first stage of the Administration's process of examining the application to be recognised as a refugee (i.e. that he left his country to seek employment) did not establish a reason for him to be covered by the International Convention; nor did the Applicant submit any specific claims of that type in his appeal. Even before the Asylum Advisory Committee, the Applicant – who had stated in his initial examination that he was a Muslim – reported, totally vaguely, that he was at risk of suffering persecution in his homeland because of the change in his religious beliefs, yet he did not present any evidence to support his claims that he had adopted Christianity nor did he plead that he was unable to present any (even unofficial) relevant evidence. Under these circumstances, since the Applicant had not put forward any claims which were substantive, in the sense set out above, to establish that there was a risk of persecution in his country, the asylum application was lawfully rejected and the contested decision which held the Applicant's claims to be contradictory and unsubstantiated did not require any more specific justification. The Council of State also stressed there was no need for the minutes of the Asylum Advisory Committee's session to give a detailed report of the questions posed by members of the Committee, or of the Applicant's responses, or even his credibility assessment, especially given that the Advisory Committee had no obligation under the provisions of domestic and international law to highlight the Applicant's contradictions which were, in this case, obvious. Pleas to the contrary were, therefore, rejected.

The Council of State also rejected the claim that the contested act was issued in contravention of the UN “Handbook on Procedures and Criteria for Determining Refugee Status” as being unfounded, since it (the handbook) is not binding in nature. Finally, the Court ruled that the Applicant cannot be subject to the provisions of paragraph 4 of Article 25 of Law 1975/1991 (Article 2 of Law 2452/1996) which enable a competent authority to approve temporary residence for a foreigner whose application for recognition as a refugee has been rejected, firstly because there is no evidence or allegation that the Applicant had submitted such a request, and secondly because his claims before the Administration to gain international protection were rejected as contradictory and unsubstantiated. It was also ruled that the Authority was not obliged to specifically examine the possibility of allowing him to remain on humanitarian grounds, and the relevant plea was dismissed.

Outcome: 

The Council of State rejected the application.

The Court ordered forfeiture of the fee and required the Applicant to pay the State's legal costs.

Observations/Comments: 

Court composed of:

Ath. Rantos, Vice-president, presiding in place of the President of the Chamber who was indisposed; E. Antonopoulos, A. Stathakis, Councillors; I. Mazos, V. Kintziou, Associate Councillors. The Clerk was N. Athanasiou.

Other sources cited: 

Decisions of the United States Federal Court of Appeal, second Circuit, Ming Shi Xue v. Board of Immigration Appeals 439 F.3d 111 (2d Cir. 2006), Zhi Wei Pang v. Bureau of Citizenship and Immigration Appeals 448 F.3d 102 (2d Cir. 2006) και Majidi v. Gonzales 430 F.3d 77 (2d Cir. 2005),

Decision of the High Court of Australia, SZBEL v. Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Case Law Cited: 

Greece - Council of State, Application No. 867/2010

Greece - Council of State, Application No. 1093/2007

ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98)

ECtHR - Hilal v United Kingdom, Application no. 45276/99

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)

ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08

ECtHR - Said v Netherlands, Application No. 2345/02

Greece - Council of State, 4044/2009

ECtHR - N. v. Finland, Application No. 38885/02

Greece - Council of State, 2424/2007

Greece - Council of State, Application No. 1653/2007

Greece - Council of State, Application No. 1265/2009

Greece - Council of State, Application No. 2192/2007

Greece - Council of State, Application No. 3533/2007

Greece - Council of State, Application No. 4034/2008

Greece - Council of State, Application No. 1459/2008

Greece - Council of State, Application No. 3726/2008

Greece - Council of State, Application No. 4323/2009

Greece - Council of State, Application No. 1169/2009

Greece - Council of State, Application No. 1464/2009

Greece - Council of State, Application No. 1465/2009

Greece - Council of State, Application No. 1646/2010

Greece - Council of State, Application No. 418/2010

Greece - Council of State, Application No. 1459/2009

Greece - Council of State, Application No. 1808/2010

Greece - Council of State, Application No. 1241/2007