Poland - Supreme Administrative Court of Poland, 18 February 2009, II OSK 247/08

Country of Decision:
Country of Applicant:
Date of Decision:
18-02-2009
Citation:
II OSK 247/08
Court Name:
Supreme Administrative Court of Poland
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A (2)
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law > EN - Charter of Fundamental Rights of the European Union
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.3 (a)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 6 > Art 6 (c)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 6
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7 > Art 7.1
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7 > Art 7.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9 > Art 9.1
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9 > Art 9.2 (a)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
UNHCR Handbook
UNHCR Handbook > Para 65
National / Other Legislative Provisions:
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 15 § 1
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Headnote: 

The accusation of a breach of the individual's right to information about the rules and procedures of the refugee status proceedings and about the rights and obligations of the applicant was unfounded, as the application form for refugee status contained this information and was signed by the individual in question to acknowledge that she had been duly informed.

For refugee status to be recognised on grounds of a risk of persecution by non-state actors, it needs to be shown that this risk is linked to persecution grounds listed in the Convention.

'Women subject to domestic violence' do not constitute a social group. The assessment of whether women in Russia constitute a social group within the meaning of the Convention requires an assessment of the actual situation in the country of origin.

Facts: 

In 2005, the husband of the foreignor applied for refugee status; this application also covered the foreignor and her children. In 2006, after refugee status was finally refused, the foreignor separately applied for refugee status in Poland; this application also covered her children. She stated in her application that she was living in constant terror, as her husband beat her, threatened to take the children away, and threatened to kill her; she stated also that he was a member of an organised criminal gang.

The first instance authority - then the Head of the Office for Repatriation and Foreigners - refused to grant refugee status, and the Polish Council for Refugees (the  second instance authority) upheld this decision.

The foreignor appealed against the decision. The Regional Administrative Court in Warsaw dismissed the appeal on the grounds that the authorities in question had rightly found that the application had been submitted for economic and personal reasons ('unhealthy marriage'). This was further appealed to the Supreme Administrative Court.

Decision & Reasoning: 

The accusation that the individual had not been provided with correct information (i.e. in her native language) about the rules and procedures of the refugee status proceedings was unfounded. This information was supposed be provided in a language that the foreignor understood and contain details of the rules and procedures of the refugee status proceedings, the individual's rights and obligations, the legal effects of failure to fulfil these obligations, and organisations that help refugees. During the course of the proceedings, the foreignor was duly familiarised with the rules governing the proceedings. The applicant signed the application for refugee status, indicating that she had been duly informed, and furthermore declared that she understood Polish sufficiently to communicate freely. The design of the official application form for refugee status, which contains the necessary information (the obligation to inform the authority of a change of address and the effects of failing to do so and also the formal requirements of the application procedure and what happens if these are not met), also shows that the statutory obligation to inform the foreignor was fulfilled. Furthermore, all of the headings on the application form are in three languages, including Russian, as are the rules and procedures of the refugee status proceedings. It is therefore presumed that, if the applicant signs the declaration to the effect that she has been familiarised, this means she has been comprehensively informed about matters key to the proceedings. Although it is perfectly logical for the applicant to say that signing a declaration does not mean that she understood what she had been informed of, this does not mean, in turn, that her rights have been breached.

For an individual to be granted refugee status due to the risk of persecution by non-state actors, it must be shown that this risk is linked to persecution grounds listed in the Convention. This test is met (a) if there is a real risk of persecution by a non-state actor on grounds specified in the Convention regardless of why the applicant is not being protected by the state; (b) if the risk of persecution by the non-state actor is not linked to the Convention, but inability or refusal of the state to provide protection is indeed linked to the Convention. In other words, 'if the actor permitting the persecution is not a public authority, refugee status may be granted only if the fear of persecution has arisen on grounds listed in Article 1A(2) of the Convention relating to the Status of Refugees but also if these grounds mean that the foreignor cannot obtain protection in the country of origin'.

The conclusion cannot be drawn that 'women subject to domestic violence' are a social group, as this group must be defined without reference to the fear of persecution. Assessing whether women in Russia form a social group within the meaning of the Convention requires an analysis of the prevailing situation. In an assessment of whether the fear is well-founded, the conditions in the country of origin cannot be disregarded. The lack of any findings in this regard is all the more egregious as the applicant said during the proceedings that she had no access to organisations that support women, whilst the state authorities tolerate domestic violence.

Outcome: 

The judgment of the Regional Administrative Court in Warsaw was overturned; the judgment by the Polish Council for Refugees was overturned.

Observations/Comments: 

In this judgment, the realisation of the foreignor’s right to be informed during the refugee proceedings was interpreted narrowly as an obligation on the part of the authority to ensure that information was provided in a language the foreignor understood in the application form for refugee status. The judgment concerns the question of persecution by non-state actors and the role of information about the country of origin in defining a particular social group.

Other sources cited: 

Aguirre Cervantes v INS, 21 March 2001.

Report by Amnesty International on violence against women in the Russian Federation.

Case Law Cited: 

CJEU - C-80/86, Kolpinghuis Nijmegen BV

Poland - Supreme Administrative Court of Poland, 29 January 1999, V SA 1499/98

Poland - Supreme Court, 7 June 2001, III RN 110/00

Italy - Constitutional Court, 25 October 2006, No 368

CJEU - C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA

United States - Matter of Acosta (Interim Decision 2986, March 1, 1985)