Poland - Judgement of the Voivodeship Administrative Court in Warsaw from 7 September 2015 no IV SA/Wa 607/15 dismissing the complaint regarding the decision of the Refugee Board on finding the application inadmissible and discontinuing the procedure

Country of Decision:
Country of Applicant:
Date of Decision:
07-09-2015
Citation:
IV SA/Wa 607/15
Court Name:
The Voivodeship Administrative Court in Warsaw
National / Other Legislative Provisions:
Poland - Art 40 of the Law of 13 June 2003 on granting protection to foreigners in the territory of the Republic of Poland
Poland - Art 48 of the Law of 13 June 2003 on granting protection to foreigners in the territory of the Republic of Poland
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Headnote: 

The Court ruled that when deciding whether the subsequent application is admissible, new facts regarding the individual situation of the applicant or her situation in the country of origin as well as change in the situation of the country of origin alone are significant. When examining whether the grounds of the first and the subsequent application are the same, the essence of the facts is important, not the manner in which they are presented.

With regard to the applicant’s argument that in the present case the legal grounds for granting subsidiary protection were not examined, the Court stated that in the decision on discontinuing the procedure because of inadmissibility of the application, the authorities do not rule on refusal of refugee status, therefore there is no self-standing legal basis to examine the grounds for granting subsidiary protection. The present application, as the inadmissible one, could not have led to the in-merit examination of the grounds for granting refugee status and therefore could not have included the examination of the subsidiary protection grounds.  

Facts: 

The applicant, a national of the Russian Federation, applied for asylum in Poland in November 2012. She claimed she was persecuted because of her son. She was refused refugee status, subsidiary protection and a tolerated stay permit. She lodged a subsequent application in March 2014, claiming again that she was persecuted and that her health condition was getting worse. The authorities of both instances stated that her application was inadmissible and discontinued the asylum procedure. The applicant lodged a complaint to the Voivodeship Administrative Court in Warsaw.

Decision & Reasoning: 

The Court agreed with the authorities of both instances that the subsequent application was based on the same grounds. The Court decided to first clarify what is meant by this term.

Taking into account the guidelines contained in the Asylum Procedures Directive 2005/85/EU, a subsequent application for asylum shall be subject first to a preliminary examination as to whether new elements or findings relating to the examination of whether the applicant qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant. The application is subject to examination under the regular procedure if following the preliminary examination new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee. New facts regarding the individual situation of the applicant or her situation in the country of origin as well as change in the situation of the country of origin alone are significant here. What has to be highlighted is that when examining whether the grounds of the first and the subsequent application are the same, the essence of the facts is important, not the way in which they are presentation.

With regard to the applicant’s argument that in the present case the legal grounds for granting subsidiary protection were not examined, the Court ruled that in the decision on discontinuing the procedure because of inadmissibility of the application, the authorities do not rule on refusal of refugee status, therefore there is no self-standing legal basis to examine the grounds for granting subsidiary protection. The present application, as the inadmissible one, could not have led to the in-merit examination of the grounds for granting refugee status and therefore could not have included the examination of the subsidiary protection grounds. 

Outcome: 

Confirming the decision of the Refugee Board on discontinuing the procedure.