Hungary - Metropolitan Court, 10 November 2009, O.K.E. v Office of Immigration and Nationality (OIN), 15.K.34.873/2008/13

Country of Decision:
Country of Applicant:
Date of Decision:
10-11-2009
Citation:
15.K.34.873/2008/13
Court Name:
Metropolitan Court of Budapest (currently: Budapest Administrative and Labour Court)
Relevant Legislative Provisions:
UNHCR Handbook > Para 38
UNHCR Handbook > Para 41
UNHCR Handbook > Para 42
National / Other Legislative Provisions:
Hungary - Act LXXX of 2007 on Asylum - Art 6(1)
Hungary - Act LXXX of 2007 on Asylum - Art 12
Hungary - Act CXL of 2004 on the General Rules of Public Administrative Procedures and Services (Administrative Procedure Act)
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Headnote: 

The Court obliged the Respondent to conduct new proceedings as it expressed an opinion on the Claimant’s state of health without appointing an expert.

Facts: 

The Claimant requested refugee status in 2002 citing his membership of MASSOB and political activity. The Respondent rejected the request for refugee status, but, making reference to the Claimant’s state of health, found that the prohibition against expulsion / non-refoulement applied (i.e. tolerated status). In 2008 the Respondent launched ex officio proceedings for a review of the Claimant’s legal entitlement to stay which included a full review of the Claimant’s entitlement to refugee, subsidiary protection and tolerated status. The Respondent found that the Claimant cannot be recognised as having either refugee or subsidiary protection status, and also found that non-refoulement no longer applied.

Decision & Reasoning: 

According to the Court, the Respondent rightly questioned the credibility of the Claimant, stating that the issue of the Claimant’s political persecution had already been the subject of legal proceedings with a final decision, and the Claimant made no reference to new facts or circumstances in the current proceedings.

However, the Respondent did not call upon the Claimant to attach new medical documents when reviewing eligibility for subsidiary protection status, nor was a medical expert appointed, and because of this the Respondent could not have made substantiated findings in issues requiring such particular expertise. Conducting a review of these factors is indispensable in issues concerning subsidiary protection status. The Court obtained a country of origin report on the quality and availability of Nigerian health-care services.

In view of the above, the Court repealed the Respondent’s decision and ordered the Respondent to conduct new proceedings. When reviewing subsidiary protection status the Respondent may not ignore the medical information provided by the Claimant in the proceedings, nor the content of the country of origin report obtained by the Court. Medical expertise is required to assess issues related to the Claimant’s state of health, which requires testimony from a medical expert and the provision of a professional opinion.

Outcome: 

Decision repealed, new proceedings ordered.

Subsequent Proceedings : 

In the new proceedings the Respondent again rejected the Claimant’s application and again did not appoint a medical expert. Following the appeal filed against the new decision, the Court once more repealed the Respondent’s decision as it had failed to meet its obligation to appoint an expert. In the third round of proceedings the Respondent granted the Claimant subsidiary protection status.