Hungary - Administrative and Labour Court of Budapest, 28 June 2013, R.Y (Afghanistan) v Office of Immigration and Nationality (OIN), 17.K.31893/2013/3-IV

Country of Decision:
Country of Applicant:
Date of Decision:
28-06-2013
Citation:
17.K.31893/2013/3-IV
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 63(1)
Hungary - Act LXXX of 2007 on Asylum - Art 63(2)
Hungary - Act LXXX of 2007 on Asylum - Art 64
Hungary - Decree No. 301/2007 on the implementation of the Act on Asylum - Art 92
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Headnote: 

The Applicant challenged the first instance decision and was granted refugee status on the basis of a fear of persecution on grounds of his imputed political opinion, which was not identified by the asylum authority (OIN). The asylum authority considered Kabul as an alternative for internal protection, which was rejected by the Court since the Applicant had no family ties and employment in Kabul, which is getting overpopulated and residents are threatened by terrorist attacks.

Facts: 

The Applicant was working for the Free and Fair Elections Foundation (FEFA) in Mazar-e-Sharif and visited several villages and settlements in the region. He claimed that he was threatened by the Taliban to stop his activities otherwise he would face harm. The Applicant had two colleagues who were kidnapped and murdered and on one occasion he could only escape from three armed motorcyclists chasing him by pure luck and because of the dusty road. He reported the case to the local police and obtained a certification confirming his report. Before fleeing the country in November 2011, he moved his family into hiding in a safe village nearby but they had to flee as well, to Tajikistan, after being menaced by gunmen in April 2013.

Decision & Reasoning: 

The OIN stated that the Applicant did not face persecution upon return as he did not carry out political activities himself but was only a civilian and could not evoke Geneva grounds for persecution. In addition, the Applicant could not prove his flight story beyond reasonable doubt and could have safely moved to Kabul, where FEFA is seated, and find a job there. The asylum authority also stated that the kidnapping of three colleagues did not target the Applicant, therefore, there was no personal risk of persecution or serious harm in his case. Moreover, the Applicant did not leave his country of origin in a “spontaneous” manner, which is proven by his certificate from the police department in Balkh.

The Court ruled that the OIN wrongly established that there were no persecution grounds when it failed to recognize the Applicant’s imputed political opinion as a ground for protection under the Qualification Directive.  The Court also ruled that it is wrong to require evidence of full probative value that may prove the risk of persecution beyond reasonable doubt as the standard of proof in asylum cases requires only substantiation, which is far from the reasonable doubt as in criminal procedures.    

TheCcourt noted that, logically, after recognizing that the Applicant feared persecution on grounds set out in the 1951 Refugee Convention, it is necessary to evaluate if state protection was available for the Applicant.

The Court emphasised that the asylum authority held it against the Applicant that he did not seek protection from the local police but at the same time failed to substantiate whether the local police would have been able to protect the Applicant from persecution. Based on the fact that the authority was unable to provide country of origin information confirming the availability of state protection and with regard to the general circumstances/situation in Afghanistan, the Court assessed that there was no internal protection available from state actors. 

The Court ruled that it was an irresponsible statement that hiding in a village in the Mazar-e-Sharif region would have been an internal protection alternative as the Applicant did not stay there longer but organised his flight from there hiding. The fact that the Applicant’s family faced problems in that village also shows that this option could not be considered as an internal protection alternative. As regards Kabul as an internal protection alternative, the Court stated that it is not enough to claim that Kabul is an option for internal protection only because it is the most populated city of Afghanistan. The OIN failed to show why the Applicant would not be targeted by the Taliban because of his activities with FEFA. The Court referred to the EASO report on Afghanistan (EASO Country of Origin Information report: Afghanistan, Insurgent strategies -- intimidation and targeted violence against Afghans) stating that Mazar-e-Sharif can be considered safer than Kabul, which meant in the case in question that the Applicant will also risk persecution in Kabul as he was already targeted in the safer Mazar-e-Sharif. It is not certain that the Taliban would have the capacity to follow and hunt down the Applicant in Kabul but as personal ties are important in the Afghan society, it cannot be excluded either, especially as different sources vary on the security situation in Kabul.

Based on the above arguments, the Court found that the conditions set forth by Section 92(2)(c) of the Government Decree No. 301/2008 implementing Act No. LXXX of 2007 on asylum would not be met, namely that the Applicant can reasonably be required to return to the part of the country concerned if there is no threat that the Applicant will suffer persecution or serious harm or other serious infringement of human rights in that part of the country.   

Outcome: 

The appeal was granted and the Applicant was recognised as a refugee by the Court.

Observations/Comments: 

The OIN wrongly assessed the Convention ground when stating that membership of FEFA had no political context therefore the Applicant was not carrying out political activities in his country of origin. Also, by requiring that the Applicant be singled out (targeted) by the actor(s) of persecution, the asylum authority misinterpreted the Geneva Convention.

Other sources cited: 

EASO Country of Origin Information report: Afghanistan, Insurgent strategies -- intimidation and targeted violence against Afghans, December 2012.