Hungary - Metropolitan Court, 15 October 2009, I.A.Z. v. Office of Immigration and Nationality, 21.K.31555/2009/6

Country of Decision:
Country of Applicant:
Date of Decision:
15-10-2009
Citation:
21.K.31555/2009/6
Court Name:
Metropolitan Court / Fővárosi Bíróság
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Headnote: 

The decision of the asylum authority was annulled on the basis that there was insufficient evidence that an internal protection alternative existed. 

Facts: 

The applicant, from Somalia, left her country of origin on the 13th of October 2008. She traveled to Turkey through Dubai by plane and arrived in Hungary on the 2nd November 2008. In 2006 two of her children were killed in front of her and another disappeared. She was raped and robbed, and her husband was beaten several times. She recognised that her attackers were soldiers who were members of the temporary government. The soldiers belonged to tribes of superior classes. She claimed that they intended to kill people that belonged to minority groups. Her neighbours took her to relatives living in another area, where she spent almost two years. This was a forest "village" - which consisted of nothing more than a couple of makeshift wooden huts in the forest. There were no roads, no sewage disposal and no facilities for protection and defence. The women living in these makeshift huts were regularly exposed to violence from different armed groups. The applicant’s husband was also killed while she was hiding in the forest. The applicant explained that since Ethiopian groups arrived in the country, the situation became even worse, as they also killed people who belonged to minority groups.

The asylum application was rejected by the Office of Immigration and Nationality (OIN) in the administrative procedure. The OIN found that the reasons why she fled her country of origin in 2008 could be regarded as a ground for persecution set out in the 1951 Refugee Convention. The OIN also pointed out that discrimination based on membership of an ethnic group (national minority) is also recognised as persecution. The OIN accepted the applicant had a valid ground to claim persecution, provided that she was a victim of sexual assault because of her Asharaf origin.

The OIN considered, however, that the applicant had found internal protection against persecution within her country of origin for two years. Between 2006 and 2008 she benefited from the internal protection alternative within Somalia and had an opportunity to continue with her life. The OIN granted tolerated status to the applicant as she could not substantiate individual persecution or serious harm (due to the availability of an alternative protection alternative), but found that she would face treatment contrary to Art 3 of the ECHR upon her return to Somalia, and granted her ‘tolerated status’.

The applicant’s lawyer claimed that living in makeshift huts under extremely harsh conditions and being exposed to attack by armed groups did not constitute internal protection within her country of origin.

Decision & Reasoning: 

The Court held that, although the applicant was able to stay in Somalia from 2006 until 2008, the decision of the OIN could not be regarded as lawful given that:

“the authority could not identify a specific territory where the internal protection alternative would be possible.”

The asylum authority therefore breached its obligation by failing to collect all of the relevant facts and evidence before making its decision. The court stated that:

“The OIN has to indicate whether the internal protection alternative is available and if so, in which specific territory of Somalia.”

The court did not address the question whether the applicant’s hiding in the forest without any sort of protection constituted internal protection.

Outcome: 

The decision of the OIN was annulled and the OIN had to re-examine the application in the repeated procedure.

Subsequent Proceedings : 

In the repeated procedure the applicant was granted refugee status by the asylum authority at first instance.

Observations/Comments: 

The OIN failed to apply the internal flight alternative properly. The OIN’s argument was inconsistent in itself - claiming that the applicant was not subject to persecution and then acknowledging that the rape she suffered could be regarded as persecution. The Court quashed the first instance decision purely on the basis of formalities and failed to consider the past persecution and the circumstances of the alleged internal protection alternative in order to change the decision and grant refugee status to the applicant. Despite the well documented medical evidence the court did not take into consideration that the applicant suffered from PTSD but insisted that the applicant’s credibility was refuted.