Case Law Summaries

AUSTRALIA

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (Full Federal Court of
Australia, 24 October 2016)

This appeal involved the refugee claim of a Hazara man from Afghanistan who claimed to fear
persecution by the Taliban because of his Hazara ethnicity and Shia faith. The tribunal had disbelieved
the appellant and declined to grant his protection visa. This case is highlighted because it counters the
assumed position – found in both Australian case law and elsewhere – that ‘credibility is a matter par
excellence for the [original fact-finder]’. Given the centrality of credibility assessment in refugee status
determination, an inability to challenge credibility findings at the judicial review stage can render such a
review largely ineffectual in many cases.

The Full Federal Court explained that the frequent recitation of the expression that credibility is a matter
par excellence should not be understood as precluding challenges to credibility or, indeed, other
findings of fact on any basis. The court explained that recognized grounds of judicial review might be
invoked to challenge credibility including: failure to afford procedural fairness (natural justice); reaching
a finding without any logical or probative basis; unreasonableness and/or jurisdictional error. In this
case, none of these grounds was made out. However, in a decision handed down less than two months
later (ARG15 v Minister for Immigration and Border Protection [2016] FCCA 1086), the court applied
these principles to hold that there was no probative evidence to support the credibility findings below
and/or that the credibility finding was irrational or illogical.

BELGIUM

X v Commissaire général aux réfugiés et aux apatrides Case No 177 178 (Conseil du Contentieux des
Etrangers, 27 October 2016)

This case concerns a Turkish woman of Kurdish origin who suffered severe ill-treatment by her husband
and persecution by her own family in Turkey. After she obtained a divorce from her husband, she
received death threats from him and was rejected by her own family. She went to Belgium, where her
application for regularization was rejected. In 2007 she married a man in Belgium at the consulate of
Turkey. She had to return to Turkey to get a visa and survived there by hiding at the home of a friend.
Since the woman did not get the visa and feared ill-treatment at the hands of her first husband and her
family, she returned to Belgium, where she applied for asylum in 2009. The Commissaire général aux
réfugiés et aux apatrides (CGRS) rejected her application for asylum and the woman did not appeal
against that decision.
The woman then returned to Turkey, where she was mistreated by her family since she had married a
Turkish man who was not chosen by them. The woman was forced to divorce from her second husband
and to marry another man whom her family had chosen for her. She fled to Belgium and applied for
asylum for the second time. The CGRS again rejected her application and again she did not appeal
against the decision.

After the woman received an order to leave the country from the Belgian authorities, she applied for a
medical regularization under article 9ter Aliens Act, which was refused by the Aliens Office. She then
applied for asylum for the third time. She also submitted medical documents. The CGRS rejected her
application on the basis that she lacked credibility. The CGRS, however, never inquired into the situation
of Kurdish females or victims of domestic violence in Turkey. The woman appealed against that decision
to the Conseil du Contentieux des Etrangers (CALL).

On 27 October 2016, the CALL recognized the woman as a refugee based on her membership of a
particular social group. The CALL found that, as a result of the ill-treatment she endured, she has severe
psychological problems such as anxiety and concentration difficulties. While in Belgium, she also
attempted suicide on two occasions. Moreover, the woman has scars as a result of the ill-treatment and
suffers from post-traumatic stress disorder and depression, which is corroborated by medical evidence.
It was also found that there was no available protection in Turkey, against either the domestic violence
or the family coercion. Therefore, the CALL decided that the assessment of a well-founded fear of
persecution should take into account her individual circumstances, including psychological and physical
trauma. The woman demonstrated that her fear of persecution is well founded and persistent, which
makes her return to Turkey impossible.

EUROPEAN COURT OF HUMAN RIGHTS

BAC v Greece Application No 11981/15 (13 October 2016) [ECHR, articles 3, 8, and 13]

On 13 October 2016, the European Court of Human Rights (ECtHR) gave its judgment in BAC v Greece
(Application No 11981/15) concerning the failure of Greek authorities to process the applicant’s asylum
claim and the effect of such a delay on the individual’s right to family life.

The case relates to a Turkish national, who had been waiting for a decision from the Greek authorities
regarding his asylum application since 2002. The applicant submitted an application to the ECtHR
complaining of an interference with his private life in breach of article 8 European Convention on
Human Rights (ECHR) because he had been living in Greece for 12 years with an uncertain status. He
further claimed that he faced a real risk of being subjected to ill-treatment if he were returned to Turkey
in violation of article 3 ECHR. In relation to both these complaints, he also held that he did not have an
effective remedy by which to complain of these violations.

In relation to article 8 ECHR, the court found that the competent authorities had failed to comply with
their positive obligation under article 8 ECHR to provide an effective and accessible means of protecting
the right to private life. This should have been done through appropriate regulations ensuring that the
applicant’s asylum application was examined within a reasonable time in order to keep his state of
uncertainty to a minimum. In addition, the court held that there had been a violation of article 13 ECHR
in conjunction with article 8 ECHR.

In relation to article 3 ECHR in conjunction with article 13 ECHR, the court concluded that there would
be a violation of both articles if the applicant were returned to Turkey without an assessment of his
prospective personal circumstances. In its assessment, the court considered the evidence, submitted by
the applicant in support of his asylum application in Greece, as conclusive given previous ill-treatment in
Turkey. Moreover, the court observed that the legal status of the applicant remained uncertain because
his asylum application still had to be determined. This put him at risk of sudden removal to Turkey
without an effective examination of his asylum claim.

Abdullahi Elmi and Aweys Abubakar v Malta Application Nos 25794/13 and 28151/13 (22 November
2016) [ECHR, articles 3 and 5]

On 22 November 2016, the ECtHR delivered its judgment in Abdullahi Elmi and Aweys Abubakar v Malta
(Application Nos 25794/13 and 28151/13) concerning the eight-month detention of two asylum-seeking
children pending the outcome of their asylum procedure and, in particular, the age assessment
procedure employed.

The case relates to two Somali asylum-seeking children, who applied for asylum shortly after their arrival
in Malta. They were detained while awaiting their age assessment test. Even though the applicants were
found to be children, they were only released from detention several months later. They submitted an
application at the ECtHR complaining about the deplorable conditions of their immigration detention in
violation of article 3 ECHR. Moreover, the applicants complained that their detention had been arbitrary
and unlawful in breach of article 5(1) ECHR. Lastly, they argued that they had no effective remedy to
challenge the lawfulness of their detention pursuant to article 5(4) ECHR.

In relation to article 3 ECHR, the court concluded that since the applicants were minors, who were
detained for a period of around eight months, the cumulative effect of the conditions complained of
amounted to degrading treatment in violation of article 3 ECHR. These conditions included, inter alia,
limited light and ventilation, deplorable sanitary facilities, lack of organized (entertainment) activities for
minors, lack of proper counselling and educational assistance, a violent atmosphere, and a lack of
support mechanisms for the minors, as well as lack of information concerning their situation.

Referring to the cases of Mahamed Jama v Malta (Application No 10290/13, 26 November 2015) and
Moxamed Ismaaciil and Abdirahman Warsame v Malta (Application Nos 52160/13 and 52165/13, 12
January 2016), the court further found a violation of article 5(4) ECHR as the applicants did not have an
effective and speedy remedy under domestic law by which to challenge the lawfulness of their
detention. In addition, the court concluded that the applicants’ detention was not in compliance with
article 5(1) ECHR. Whereas the court observed that the detention had a sufficiently clear legal basis, the
detention was deemed arbitrary because the several delays in the age assessment process raised serious
doubts as to the Maltese authorities’ good faith. This situation was further exacerbated due to the lack
of procedural safeguards and the failure of the authorities to ascertain that the immigration detention
was a measure of last resort for which no alternative was available.

Judge Sajó and Judge Pinto De Albuquerque gave concurring opinions.

El Ghatet v Switzerland Application No 56971/10 (8 November 2016) [ECHR, article 8]

On 8 November 2016, the ECtHR gave its judgment in the case of El Ghatet v Switzerland (Application No
56971/10) concerning the refusal of Swiss authorities to permit the family reunification of an Egyptian
son with his father, who has Egyptian and Swiss nationality. The Swiss Federal Supreme Court had ruled
that the applicant’s son had closer ties to Egypt, where he had been cared for by his mother and
grandmother, and that the father should have applied for family reunification immediately after arriving
in Switzerland. The father and son submitted an application to the ECtHR complaining that the Swiss
authorities’ refusal of family reunification violated their right to respect for family life as provided in
article 8 ECHR. Based on the facts of the case, and its conclusion that the child’s best interests were not
given sufficient regard in the balancing of competing interests, the court found a violation of article 8.

EUROPEAN UNION

Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General (Court of Justice of
the European Union: Case C-429/15, 20 October 2016)

On 20 October 2016, the Court of Justice of the European Union (CJEU) delivered its judgment in the
case Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General, which relates
to the interpretation of the principle of equivalence.
The case concerned a Ghanaian national, whose applications for international protection and
humanitarian leave to remain were rejected. Her subsequent application for subsidiary protection was
similarly rejected because this application had not been lodged within the period of 15 working days
after the notification that her asylum claim had been rejected.

The Court of Appeal (Ireland) referred a request for preliminary ruling to the CJEU on:

whether the principle of equivalence must be interpreted as precluding a national procedural rule, such
as that at issue in the main proceedings, which requires an application for subsidiary protection status to
be made within a period of 15 working days of notification, by the competent authority, that the
applicant whose asylum application has been rejected may make an application for subsidiary
protection.

Taking into consideration the particular human and material difficulties of the applicants for
international protection, the CJEU held that a 15-day limit is particularly short and does not ensure that
all those applicants are afforded a genuine opportunity to submit an application for subsidiary
protection. For this reason, such a time limit cannot reasonably be justified for the purpose of ensuring
the proper conduct of the procedure for examining an application for that status.

That conclusion, moreover, cannot be called into question by the need to ensure the effectiveness of
return procedures, since the time limit at issue in the main proceedings is not directly linked to the
return procedure, but to the rejection of the application for refugee status.

FRANCE

Decision No 388830 (Conseil d’État, 9 November 2016)

The case concerned a Rwandan national, Mr MB, who had been a soldier in the Rwandese army during
the early days of the genocide against the Tutsi and who provided a testimony before the International
Criminal Tribunal for Rwanda in favour of a soldier convicted of participation in the genocide. He was
granted refugee status by the Cour nationale du droit d’asile (CNDA) on the ground that he had a well-
founded fear of being persecuted on political grounds if he were to be returned to Rwanda, and because
there was no serious reason to believe that he had committed a war crime or a crime against humanity
(in accordance with article 1F(a) of the 1951 Refugee Convention).
The Conseil d’État annulled the decision of the CNDA granting him refugee status on the ground that at
the time he was a soldier and the Rwandese army carried out the genocide of the Tutsi population, he
was in fact carrying out commanding functions within a unit involved in the genocide. Moreover, it was
undisputed that he had sought to deceive the French authorities by refusing to reveal his military
registration number (this was finally revealed at the hearing before the CNDA). Hence, the Conseil d’État
found the CNDA to have been wrong in its ‘qualification juridique’ and ordered it to reconsider the case
in the light of article 1F.

[Hélène Lambert]

UNITED STATES

Barajas-Romero v Lynch 2017 US App LEXIS 858 (US Court of Appeals, 9th Circuit, 18 January 2017)

This case concerned an asylum claim by a Mexican national who had been tortured by off-duty police
officers and feared further persecution if returned. The Immigration Judge had found the applicant to be
credible and accepted that the torture had occurred. However, his claim had been rejected on the
ground that the persecution ‘was solely an effort to extort money by rogue police officers and not
because of an expressed or implied [or imputed] political opinion’ and the threat came ‘solely from the
off-duty, rogue officers themselves and not the government’. As for the Convention against Torture
(CAT) claim in that case, the Immigration Judge had determined that the applicant could relocate
elsewhere in Mexico.

On appeal, the US Court of Appeals for the 9th Circuit found for the applicant on each of these points.
On the nexus issue, the court began by reviewing its 1999 en banc decision in Borja, in which it had held
that ‘on account of’ [the US implementation of ‘for reasons of’] did not mean persecution solely for that
reason. It had held in Borja that persecution was ‘on account of’ a Convention ground if it was so
motivated ‘at least in part’. Since that decision, Congress had amended the statute so that for asylum
claims the victim’s political opinion has to be a ‘central reason’ for the persecution. However, the court
noted that for the distinct remedy – withholding of removal – the statute invoked the phrase ‘a’ reason,
not ‘at least one central reason’. The court considered this to be a deliberate choice rather than a mere
drafting oversight, and that the phrase ‘a reason’ includes ‘weaker motives than “one central reason”’.
As the court explained, ‘a person may have “a reason” to do something that is not his “central” or even
“one central reason”’. It followed that ‘a reason’ is a less demanding standard than ‘one central reason’.
This decision is relevant also to other jurisdictions where similar statutory adjustments have been made
to the causal element of the nexus clause.

In terms of the CAT claim, the court held that the statute and regulations ‘do not establish a “rogue
official” exception to CAT relief’. In addition, in relation to the possibility of relocation within Mexico, the
court recalled its recent decision en banc (in Maldonado v Lynch) to overrule an earlier line of authority
so as to hold that ‘although a petitioner bears the ultimate burden to prove he would be tortured if
returned to his country, the petitioner does not bear the burden … to show that it is impossible to avoid
torture by internally relocating within a country’.