Polska: V SA/Wa 2332/11 - Wyrok WSA w Warszawie, 13 czerwca 2012, S.B. against Rady do Spraw Uchodźców

Country of Decision:
Country of Applicant:
Date of Decision:
13-06-2012
Citation:
V SA/Wa 2332/11
Court Name:
Regional Administrative Court in Warsaw
National / Other Legislative Provisions:
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 7
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 77
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 13 § 1
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 13 § 15
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 13 § 97
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 40 § 1
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 40 § 2(2)
Poland - Ustawy Prawo o postępowaniu przed sądami administracyjnymi (Act on Proceedings before Administrative Courts) - Art 145 § 1(1)(a)
Poland - Ustawy Prawo o postępowaniu przed sądami administracyjnymi (Act on Proceedings before Administrative Courts) - Art 145 § 1(1)©
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Headnote: 

The third action in a row brought by a foreign woman for refugee status ended in the issue of a judgment dismissing the case as it was found that the basis for the application was the same as in the previous cases and the application was therefore inadmissible. The Court overturned the negative decision by the Polish Council for Refugees, as the new application by the foreign woman stated that she had divorced her then husband and had been in a relationship for a year with a Polish citizen, which might cause persecution on religious grounds were she to return to her country of origin.

Facts: 

The foreign women, who is a Russian citizen and states her ethnicity to be Chechen, applied for the third time for refugee status to be accorded to her and to her two minor children. In her application for refugee status, she said she feared persecution in her country of origin as her husband had been persecuted. In the proceedings initiated by the third application, she said that she could not return to Chechnya as she had been in a relationship with a Polish citizen for around a year and that she had not been cohabiting with her husband, so the husband's family posed a threat and she was scared her children would be taken away from her.

The head of the Polish Office for Foreigners dismissed the proceedings on the grounds that the application was inadmissible, as the facts cited added nothing to the application for protection, and the divorce and the relationship with a Polish citizen are cultural and personal circumstances that have no link to the Polish Act on the Provision of Protection to Foreigners in the Republic of Poland. The Polish Council for Refugees upheld the decision by the first instance authority. The foreign woman appealed against the decision by the Polish Council for Refugees to the Regional Administrative Court in Warsaw.

Decision & Reasoning: 

The head of the Polish Office for Foreigners, in his grounds for the decision to dismiss the proceedings, argued that the application by the foreign woman had been the third application in a row for refugee status. The foreign woman's application cited the fact that she had left her country of origin due to her husband, who was being persecuted there. They were intruded upon in their home and persecuted, so she was concerned for the safety of her children and decided to emigrate to Poland. The head of the Polish Office for Foreigners said that the grounds cited by the foreign woman had been identical in the first of the applications made.

The head of the Polish Office for Foreigners argued that the foreign woman had said during the course of the proceedings that she could not return to Chechnya as she had been in a relationship for around a year with a Polish citizen and that she had not been cohabiting with her husband, so her husband's family posed a threat and she was scared that her children would be taken away from her.

The head of the Polish Office for Foreigners, assessing the circumstances cited by the foreign woman, found that they added nothing to the case, which had the same basis as before. According to the authority, the submission of a further application proves abuse of process on the part of the foreign women, and citing the alleged threat to her safety was insufficient for the outcome to be in her favour, as these circumstances are cultural and personal and furthermore have no connection with the Polish Act on the Provision of Protection to Foreigners in the Republic of Poland.

The Polish Council for Refugees upheld the decision by the first instance authority. The foreign woman appealed against the decision by the Polish Council for Refugees to the Regional Administrative Court seeking the decisions by the first and second instances to be overturned.

The Court allowed the appeal and overturned the decision by the Polish Council for Refugees, concluding on the basis of an analysis of the appellant’s application which was understood to be a request for refugee status, in the context of all circumstances cited as grounds for said application, the foreign woman had cited new, additional circumstances pertaining to her individual situation.

These circumstances could not be found to be identical, in other words not bringing anything new (?) to the proceedings in this formal case concerning the dismissal of proceedings. They should be assessed on their merits in the context of rules concerning the provision of protection to foreigners and in relation to the principles and customs prevailing in the country of origin of the foreign woman and taking into account the references to her situation with regard to the current situation prevailing in this country. In particular, to clarify all of the circumstances of the case, the foreign woman should be heard.

The Court stressed that when the authority refers to the socio-political situation, it should expressly cite the reports or studies it uses, as it is not sufficient for the authority to hold these materials in the case files and take them into consideration.

The Court stressed that the authority has the power to  adduce any evidence that might clarify the case. In these proceedings, the fact that the case had not been duly clarified might have affected the outcome, so the decision appealed against was overturned.

Outcome: 

The court overturned the decision appealed against.

Observations/Comments: 

The judgment clearly indicates the authority's obligation to adduce any evidence that might clarify the case, which suggests a shift in the burden of proof to the authority in proceedings concerning refugees and strengthens the procedural position of the applicant. The Court stressed also that, in the context of the dismissal of proceedings, new elements or pieces of information might arise or become evident even after the applicant has left the country of origin and are or might be linked to a new situation in the country of origin, which might also relate to the concept of refugee sur place.

Case Law Cited: 

Poland - Supreme Administrative Court, 24 February 2010, II OSK 557/10

Poland - Supreme Administrative Court, 24 February 2011, II OSK 557/11