Hungary - Metropolitan Court, 16 March 2009, 24. K. 33.913/2008/9

Country of Decision:
Country of Applicant:
Date of Decision:
16-03-2009
Citation:
24. K. 33.913/2008/9
Court Name:
Metropolitan Court of Budapest
National / Other Legislative Provisions:
Hungary - Act LXXX of 2007 on Asylum - Art 6
Hungary - Act LXXX of 2007 on Asylum - Art 12
Hungary - Act LXXX of 2007 on Asylum - Art 60
Hungary - Act LXXX of 2007 on Asylum - Art 61
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Headnote: 

The Court replaced the decision of the OIN to allow the Applicant to remain on non-refoulement grounds (i.e. tolerated status), with a decision to grant the Applicant subsidiary protection status on the grounds that he would be at risk of serious harm on return to his home country (indiscriminate violence).

Facts: 

The Applicant left Iraq in June 2007. In the previous year the Applicant had been kidnapped and interrogated about his ties to the government. He was held for 71 days. During the kidnapping he took a blow to his spine, which later had to be operated on. After being released, another armed group put him under surveillance. The Applicant received a letter from them, telling him to leave the area as otherwise they would kill him. The envelope also contained a bullet. The OIN rejected the Applicant’s request for refugee and subsidiary protection status, but found that non-refoulement applied.

Decision & Reasoning: 

The Court rejected the Applicant’s request for refugee status as the persecution he was subject to was in no way related to the reasons outlined in the Geneva Convention, in particular, membership of a particular social group. The Applicant’s kidnapping was the consequence of the general situation in the country.

The Court examined Article 15 b) and c) of the Qualification Directive. In this context the Court relied significantly on the judgment reached by the European Court of Justice on 17 February 2009 in Case C-465/07. Article 15 b) of the Qualification Directive assumes facts relating to the personal situation of the Applicant, which did not apply in the Applicant’s case. The subsidiary protection status contained in Section 61 c) of the Asylum Act and in Article 15 c) of the Qualification Directive is more general, and connected rather to the situation in the country than personally to the Applicant. The Court lists the conditions for subsidiary protection status in accordance with paragraph c). In the Applicant’s case, the violations of law affecting him are consequences of the general risk of harm and indiscriminate internal armed conflict, while according to the country information reports, the violence not only affects the Applicant’s place of residence but also most of the country. In contrast to non-refoulement, the granting of subsidiary protection status is not based on the extreme nature of the prevailing situation, but on the fulfilment of statutory conditions for granting the status. The conditions differ for the two legal concepts. If the country information indicates without any doubt that the conditions for subsidiary protection apply, the Applicant must be granted subsidiary protection.

Outcome: 

The application for refugee status was rejected. However, the Court granted the Applicant subsidiary protection status.

Observations/Comments: 

The significance of the case lies in the fact that the OIN often rejects applications and finds that “only” non-refoulement applies, even when the conditions for granting subsidiary protection status are met. In the current case – and following the Elgafaji case – the Court elaborated a serious harm test in accordance with paragraph c), and declared that if the conditions apply, the Applicant must be granted subsidiary protection status instead of non-refoulement protection.