Hungary - Metropolitan Court, 30 September 2009, D.T. v. Office of Immigration and Nationality 17.K.33.301/2008/15

Country of Decision:
Country of Applicant:
Date of Decision:
30-09-2009
Citation:
17.K.33.301/2008/15
Court Name:
Metropolitan Court
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Headnote: 

Subsidiary protection can be granted if on return to their country of origin an applicant would face a real risk of torture, inhuman or degrading treatment or punishment. The question at issue was whether the reasons for such ill-treatment related to Refugee Convention persecution grounds or not. All international protection statuses require an individual threat, which cannot be indirect as the risk assessment is a future oriented examination of the possibility of a threat, along with the applicant’s individual circumstances and the probabilities of risk.

Facts: 

The applicant, a Tibetan, was attacked by two Chinese policemen, after being caught with a picture of the Dalai Lama. Following advice from his father he left the country through the Nepalese green border. His asylum application was rejected by the Office of Immigration and Nationality (OIN). The applicant was denied subsidiary protection but granted tolerated status (see observations below) based on the principle of non-refoulement. The OIN rejected the application for refugee status as the applicant could not substantiate his well-founded fear of persecution because he was not engaged in politics and did not take part in demonstrations. 

Decision & Reasoning: 

The Metropolitan Court examined the conditions of all the three categories of international protection in Hungary. Firstly, the Court analysed whether conditions existed to grant refugee status. The difference between refugee status and subsidiary protection relate to the existence or non-existence of the Convention persecution grounds (race, religion, nationality, political opinion and particular social group) with regard to the persecution feared, (in this case torture, inhuman or degrading treatment). The Court ruled that the persecution feared by the applicant was not for reasons of political opinion, or religious belief. Otherwise followers of the Dalai Lama would be considered a persecuted group, based on this reason alone. Therefore, the nexus between the alleged persecution and the reason for that perseuction (perseuction grounds) was missing.

When assessing the difference between subsidiary protection and the protection against refoulement, only those whose life or freedom is in danger or could be victims of torture, inhuman or degrading treatment or punishment are entitled to subsidiary protection [under Art 15(b) of the Qualification Directive]. An individual assessment of the risk of persecution was necessary regarding all international protection statuses, even if only the principal of non-refoulement is applicable. It has to be examined whether the applicant would be at real risk of torture, inhuman or degrading treatment in case of return. If the applicant meets the criteria of a higher protection status, this status has to be granted. The Metropolitan Court stated that:

“To establish subsidiary protection requires the applicant to prove that in case of return, the applicant would be at real risk of torture, inhuman or degrading treatment. The significant question is on what reasons is the risk based on.”

As it was impossible to find country of origin information on the consequences of leaving China through Nepal, the Metropolitan Court accepted the existence of torture, inhuman or degrading treatment as the basis of the protection against refoulement set out in the OIN’s decision. Consequently, the Metropolitan Court ruled that the applicant fulfils the criteria of subsidiary protection.

Outcome: 

The decision of the OIN was overturned and the applicant was granted subsidiary protection by the Metropolitan Court.

Observations/Comments: 

Tolerated Status: non-EU harmonised form of protection against refoulement based on Art 3 of the ECHR, please see section 51 of the Act II of 2007 on the entry and stay of third-countryy nationals, available in Hungarian at: http://jogszabalykereso.mhk.hu/cgi_bin/njt_doc.cgi?docid=107401.518283

Other sources cited: 

Country information of the Ministry of Foreign Affairs in the United States of America.

Country information of the Ministry of Internal Affairs in the United Kingdom.