Hungary - Administrative and Labour Court of Budapest, 23 May 2013, S.M.A. v Office of Immigration and Nationality (OIN), 20.K.31072/2013/9

Country of Decision:
Country of Applicant:
Date of Decision:
23-05-2013
Citation:
20.K.31072/2013/9
Court Name:
Administrative and Labour Court of Budapest
National / Other Legislative Provisions:
Hungary - Act LXXX of 2007 on Asylum - Art 6
Hungary - Act LXXX of 2007 on Asylum - Art 7
Hungary - Act LXXX of 2007 on Asylum - Art 12
Hungary - Act LXXX of 2007 on Asylum - Art 13
Hungary - Act LXXX of 2007 on Asylum - Art 61
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Headnote: 

Rather than dismissing the application, the Court recognised the subsidiary protection status of the Applicant, as his/her return to the country of origin would lead to the risk of serious harm (inhuman, degrading treatment or indiscriminate violence).

Facts: 

The Applicant submitted his/her application for refugee status for the first time in July 2009, then left to an unknown location several times. The Applicant cited a family-related dispute between his/her uncle and his/her family as well as a conflict related to a property sale. The Applicant was under hospital care in Hungary, and according to his/her final medical report, is suffering from acute polymorphic psychotic disorder. The specialist of the Cordélia Foundation believes that the traumatic origin of the disorder can neither be ruled out, nor is more likely based on the known facts. The OIN rejected the Applicant's application with regards to both refugee and subsidiary protection status, and concluded that the principle of non-refoulement is not relevant.

Decision & Reasoning: 

The Court dismissed the application for refugee status as the Applicant's repeated applications had been referred to a more detailed examination procedure on the grounds that a more detailed health examination was required - and not in order to re-examine his/her history of escape. There is no relation between the submissions of the Applicant and the grounds for persecution set out in the Geneva Convention. The Court granted subsidiary protection status to the Applicant pursuant to Articles 15 (b) and (c) of  the Qualification Directive.

With regards to the protection status defined in Article 15(b), the Court concluded that the Applicant suffers from such a mental disorder that requires continuous care and medical treatment; moreover, spontaneous recovery cannot be expected. However, the Court held that, in relation to the Applicant's treatment, the Ali-Abad Hospital in Kabul, is unable to meet the needs of the relevant population. In cases of a failure to provide appropriate care, the Applicant might be subject to a complete lack of judgement and self-care abilities, the likely result of which can be suicidal behaviour and suicide. The Court pointed out that due to Afghan cultural conventions, the family of patients with mental disorders cast shame, fear and contempt upon the patients and alienate them, resulting in complete emotional and physical exclusion, rather than helping their recovery through a supportive family environment.

With regards to granting subsidiary protection pursuant to Section (c), the Court held that there is a serious threat to the life or physical integrity of the Applicant as a consequence of indiscriminate violence in a situation of internal armed conflict, i.e. the risk of serious harm is present; and Afghanistan, including Kabul, does not provide a safe internal relocation option for him/her. The Court noted that even though the country information in this respect is not necessarily consistent and coherent, the escalation of the risk, the increase of violence and the dominance of internal anarchy can be established based on almost all of the available information. In this respect, since the life, basic safety and livelihood of the person is involved and based on the extent and nature of the danger described above (in such cases naturally the actual danger need not and cannot be proven beyond a doubt) persecution, harm or other significant detriment is likely to occur. 

Outcome: 

Partial refusal with regards to recognising the Applicant's  refugee status, yet granting him/her subsidiary protection status under Articles 15 (b) and (c) of the Qualification Directive.

Case Law Cited: 

Hungary - Metropolitan Court, 3.K.31346/2012/11

ECtHR - JH v United Kingdom, Application No. 48839/09

ECtHR - Husseini v. Sweden, Application No. 10611/09