Poland - Regional Administrative Court in Warsaw, 1 October 2012, V SA/Wa 873/12

The Regional Administrative Court allowed the appeal.

In assessing the foreignor's situation, the Court found that the Convention relating to the Status of Refugees contains a finite list of grounds on which refugee status may be recognised and does not include victims of war, natural disasters, or famine, family situation, unemployment, lack of educational opportunities, or poverty. The Court also noted that the definition of 'refugee' also does not cover those who are afraid of 'blood revenge', as such actions are criminal in nature and not tantamount to the persecution referred to in the Convention relating to the Status of Refugees.

According to the Court, the key element in the definition of a refugee is a 'well-founded fear of persecution'. This definition contains a subjective element, as 'fear' is a personal feeling and state of mind of the applicant. The term 'fear' is modified by the phase 'well-founded', which means that refugee status is determined not just with reference to the emotional state of the person in question—this state must also be supported by an objective assessment of the situation. Determining refugee status requires above all an assessment of the testimony of the applicant. This testimony may not, however, be examined in a vacuum—the context is relevant. The term well-founded fear therefore combines subjective and objective elements, and both must be considered when status is determined.

The assessment of whether a foreignor's fear of persecution is well-founded must therefore be performed with reference to the individual case in question and in the light of the general social, legal, political, and economic situation of the country of origin of the foreignor applying for refugee status.

The Court found that the Council had not justified why it had refused to treat the foreignor as a member of a particular social group, and the content of the decision in question also did not make clear why the authority had doubted the credibility of some of the foreignor's testimony.

The decision was found to have been issued in breach of fundamental principles of appeals procedure, as the grounds for the decision expressed no view on the grounds of appeal and did not refer to or assess the circumstances and evidence cited in the case, such as would enable an assessment of whether the decision by the  first instance authority had been correct. The Court therefore found a breach of administrative appeals procedure.

In the assessment of the Court, these procedural flaws in the case meant that there had also been a failure to establish whether the foreignor, on returning to Uganda, would be arrested, tortured, or subjected to inhumane or degrading treatment or punishment so the refusal to provide him with any other form of protection was unfounded.

The Court also reminded the Council that, as an appeals authority, it is obliged ex officio to take into account changes in the facts and the law occurring after the issue of the contested first instance decision but before the second instance decision.