Greece - Special Appeal Committee, 28 September 2012, Application No. 95/48884

The Committee formally accepted the appeal and unanimously decided that the Applicant should be recognised as a refugee in accordance with Article 1(A) of the 1951 Convention and the 1967 Protocol.

Concerning the credibility of the Applicant's claims, the Committee took into consideration the comments by the UN High Commission for Refugees with reference to the assessment of mentally disturbed persons (see Handbook paragraphs 206-212) according to which it is necessary, in such circumstances, to somewhat lighten the burden of proof incumbent upon the Applicant. The Committee held that the crucial claims were coherent internally and externally.

Concerning refugee status (Article 1A(2) of the 1951 Convention), the Committee accepted that in this case the subjective element of fear was satisfied, since the Applicant explicitly expressed fear and reluctance to return to his country of origin.

To examine the “objective element” of fear it is necessary to assess the Applicant's claims. However, those claims should not be evaluated in an abstract way, but must be viewed in the wider context of the relevant situation (see UNHCR Handbook par. 42). In order to assess the situation the Applicant would personally find himself in should he return to his country of origin, the Committee took into consideration the Applicant's personal opinion as well as all the factors which contributed to a deep understanding of his personal background, his profile and experience, the experiences of other people with a comparable profile, and also information regarding standard practices within the country of origin.

As for the fear being well-founded, the Committee – having taken into consideration and assessed all available evidence – held that the case was sufficiently clear as to the existence of prior persecution by government agencies in the country of origin. Ascertaining that there had been torture, as evidenced by the documents from the Medical Rehabilitation Centre for Torture Victims, led to a finding that there had been previous persecution.

However, based on the background information, the Committee found that there was no reasonable likelihood of the Applicant being persecuted now and/or in the future because of his previous activities (i.e. thirteen years earlier), partly because of the passage of a long period of time since his participation in the demonstrations in 1999 and partly because none of the claims or other evidence indicated that the Applicant was criminally prosecuted during the period in question or that there were any outstanding convictions against him. In this case, it was not possible to establish a future risk based on prior circumstances. Therefore, the objective element of fear was not satisfied andthe fear of persecution was not well-founded.

Accordingly, it was not accepted that the Applicant would, should he return, reasonably anticipate a risk of persecution because of his previous persecution in conjunction with the new circumstances which came about during his stay in Greece (i.e. participation in Iranian anti-regime movements in the country of asylum). From the facts on file, and according to the claims by the Applicant himself, there was no evidence that the Applicant had a significant leadership role or was a high profile activist in the said activities, and there was no indication of particularly notable activist behaviour which would significantly distinguish him from other ordinary participants in activities of that type. In this case, the objective element of fear was not satisfied. Therefore, the fear of persecution because of that activity in conjunction with the prior persecution was not well-founded.

Finally, despite the fact that the Applicant did not explicitly express a fear because of his religious beliefs, nor was anything like that presented as a main claim during the interview before the Committee, the Committee assessed this claim. However, there was no evidence on which to establish a risk of persecution because of apostasy. It was not clear that the Applicant's views on religion were known to the Iranian authorities, nor was there any evidence that the Applicant, when living in Iran, had adopted a way of life which was substantially different from other citizens. Furthermore, considering the Applicant's profile and that he did not explicitly express a fear because of his atheism, it appeared that there was no reasonable likelihood that the Iranian authorities would become aware of his atheist views upon his return to Iran. The Committee held that a risk of persecution because of apostasy upon the Applicant's return to Iran could not be established. A fear or persecution for this reason was not well-founded.

However, the Committee took the following elements into consideration cumulatively:

a) Characteristics of the Applicant's profile which were revealed during the personal interview and became apparent during the narration of his personal history i.e. his strong and extrovert character, and also the severe psychological trauma he continued to experience because of the torture he suffered in the past, as confirmed by the medical reports and as became obvious during the hearing before the Committee.

b)The UNHCR Criteria for Determining Refugee Status (see Handbook) and specifically paragraph 42 which stipulates that“the Applicant's fear should be considered well-founded, if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there” (see also UNHCRInterpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, par. 11 at http://www.refworld.org/docid/3b20a3914.html

c) That there may have been situations in which the Applicant was persecuted in the country of origin, but he had no present or future fear of persecution there. However, it was appropriate to recognise him as a refugee because of the compelling reasons arising from previous persecution, especially when the persecution he suffered was particularly atrocious and because the Applicant continued to suffer the consequences of his psychological harm, meaning that his return to Iran and his life there would be intolerable (see UNHCR Refugee Status Determination, 1September 2005, para. 2.2.2.2 at

http://www.refworld.org/docid/43141f5d4.html)

In view of the above, taking the criteria and factors into consideration together, the Committee held that it should recognise the Applicant's refugee status because he had suffered atrocious persecution and degrading torture in the past because of his anti-regime activities (political opinion) without the social and political situation in his country having since changed for the better and because the Applicant continued to suffer severe psychological harm, meaning that his return to his country of origin would make his life intolerable.

The Committee held that it would not be possible for him to be relocated to another area of the country of origin in a way which would satisfy the need for protection, especially because, as previously mentioned, the agent of persecution was the State and its power was nationwide, so it considered that one could expect the Applicant's life to be intolerable regardless of what part of the country of origin he returned to.