Case Law Developments

Maryellen Fullerton 13 September 2006 REFUGEE CASE LAW FROM DIVERSE COUNTRIES University of Michigan Refugee Case Law Site www.refugeecaselaw.org As of 10 September 2006 A. NON-COMMON LAW COUNTRIES SWITZERLAND = 51 cases 1.

Swiss Asylum Appeal Commission; 8 June 2006 [non-state actors] Grundsatzurteil vom 8 Juni 2006 In case by Somali asylum seeker against the Federal Migration Office, the Asylum Appeals Commission ruled that persecution can be carried out by non-state agents. Adopted “protection” view, not accountability view. GERMANY = 22 cases 1. Federal Administrative Court, 24 March 2000 [non-state actors] BVerwG, 24 Mar 2000, Nr. WBRE410006599 Because the Taliban were not recognized as the government, Afghanistan was not a state. Those escaping persecution from the Taliban may not claim asylum or refugee status; they are not returned, however. 2. Federal Administrative Court, 11 Oct 2000 [internal protection alternative] BVerwG, 11 Oct 2000, Nr. WBRE410007279 Safe haven in northern Iraq precludes asylum or refugee status. 3. Federal Administrative Court, 19 Sept 2000 [well-founded fear] BVerwG, 19 Sept 2000, Nr. WBRE410007313 Asylum seeker who, between entry into Germany and the time of the case, had returned to his country for an extended period of time does not fear persecution. 3. Federal Administrative Court, 25 July 2000 [persecution] BVerwG, 25 Jul 2000, Nr: WBRE410007143 One-time supporter of the Tamil Tigers, imprisoned in solitary confinement and beaten, was not persecuted due to his association with the Tamil Tigers. This is the manner in which the Sri Lankan government treats all prisoners. 5. Federal Constitutional Court, 10 Aug 2000

[persecution; civil war]

BverfG, Aug 10, 2000, docket no. 2 BvR 260/98, at juris online/Rechtsprechung In nations suffering from a civil war, specifically in this case Afghanistan, people do not suffer from political persecution based on the civil war. Since there is war, individuals are not being singled out, but instead it is one side against another. Since Afghanistan is not a recognized state due to the instability, there is also no ability to claim asylum or refugee status. However, individuals cannot be sent back there due to the instability, so they remain in limbo.

FRANCE = 2 cases 1. N.H. v OFPRA [persecuted for political opinion] Refugee Appeals Board (C.R.R.), decided on 22 December 1998; overturned OFPRA decision Algerian national threatened by armed groups = considered persecuted due to “action for freedom” under French law & is eligible for refugee status 2. M.G. v OFPRA [persecution] Council of State (Conseil d’Etat), decided 18 January 1994; affirmed OFPRA Chinese who is subject to 1 child policy is not subject to individual risk of persecution and not eligible for refugee status SPAIN = 2 cases 1. Shirzad Mohammed Abdolaigora v. Ministerio de Interior [changed circumstances] National Administrative Court, 10 Nov. 2003; reversed denial as inadmissible Iraqi male with ties to communist opposition; had received death threats from military; had entered with fraudulent documents. Changed circumstances in Iraq is not sufficient basis for denial, due to total lack of law and order in Iraq. 2. Fernando Augusto Gonzalez Ospina v. Ministerio de Interior [exclusion] National Administrative Court, 17 Jan. 2003; affirmed rejection Colombian former guerilla excluded because had taken part in terrorist activities. NETHERLANDS = 1 case 1. A v. Minister voor Vreemdelingenzaken en Integratie [exclusion] Council of State; 27 Oct. 2003; affirmed Minister Afghani excluded under Art. 1F • Also ruled that UNHCR Handbook & guidelines are not binding on Minister ITALY = 1 case

1. C.Z. v. Ministry of Interior Tribunale Ordinario di Catania, 15 December 2004; reversed denial of asylum Kurdish Iraqi granted asylum based on fears of backlash from Saddam Hussein for acts undertaken as prison warden in northern Iraq. POLAND = 3 cases 1. Y.E.I. Warsaw Regional Administrative Court, 3 November 2004 Sudanese from Darfur denied refugee status because did not show significant connections to Darfur and had never lived there. 2. Ikechukwu O. [internal protection alternative] Supreme Administrative Court, 29 January 2003 Catholic Nigerian fearing persecution from Ogboni religious sect rejected because could have found safe haven elsewhere in Nigeria. 3. L.Z. [internal protection alternative] Supreme Administrative Court, 10 December 2002 Chechen widow with two children fearing persecution from Russian soldiers rejected because have relocated elsewhere within country. CZECH REPUBLIC = 7 cases 1. E.D. & others v. Ministry of Interior [country conditions; internal protection?] Supreme Administrative Court, 30 Sept. 2004; overturned regional court Lower court failed to take into account Sharia law in rejecting asylum for Nigerian Christian woman and daughter; court relied heavily on human rights reports regarding country conditions. Question if internal protection alternative is available. 2. O.Z. v. Ministry of Interior [individual persecution; social group] Supreme Administrative Court, 26 August 2004, affirmed rejection Ukranian man feared racketeering & persecution due to social group, but applicant failed to prove individual persecution. * Court upheld UNHCR approach to “social group” (protected characteristics & social perception) BUT “non-members of criminal groups” are not a social group. 3.

M.I. v. Ministry of Interior [persecution] Supreme Administrative Court, 19 May 2004 Ukrainian male who suffers economic hardship not eligible for asylum because he did not show individual persecution as distinguished from mere economic hardship..

4.

V.A.N. v. Ministry of Interior [persecution] Supreme Administrative Court, 20 April 2004 Asylum denied to Vietnamese male interrogated 4 times by local police after making critical comments to the government, but the conduct of police was neither systematic nor repeated. 4.

M.S. V. Ministry of Interior [nexus to grounds of persecution] Supreme Administrative Court, 26 Feb 2004 Asylum denied to Bulgarian male, a nonbeliever, who argued his life was at stake and feared persecution at the hands of Muslim criminal groups because of his atheism. Denied because he was involved in smuggling and failed to show nexus between harm and non-belief 5. L.F. v. Ministry of Interior [persecution] Supreme Administrative Court, 25 Feb 2004 Asylum denied to Ukrainian female of Russian origin who argued that she was forced to flee her country of origin because she lived in area affected by the Chernobyl disaster which exposed her to the risk of being affected by nuclear radiation. Ecological catastrophe does not constitute a ground for granting asylum under GC1951. 6. V.S. v. Ministry of Interior [non-state actors] Supreme Administrative Court, 22 Oct. 2003 Asylum denied to Russian male who feared attacks from Chechen terrorists. Court relied on unclear jurisprudence on non-state agents of persecution in Czech Republic and held that persecution must emanate from state actors. [EU Directive will supersede Czech judicial opinion]

BELARUS = 1 case

[derivative refugee status]

1. Moskovskij Regional Court 13 April 2004 Wife of Afghan refugee fears persecution by mojaheds due to marital status. She is entitled to refugee status in Belarus and to join her husband who had already been recognized as a refugee in Belarus.

B. COMMON LAW COUNTRIES SOUTH AFRICA = 2 cases 1. R.P.M. v. Refugee Status Determination Officer [persecution] Refugee Appeal Board, 30 Nov 2004; reversed decision below

Zimbabwe accountant fears he will not find employment because he is card-carrying member of Movement for Democratic Change, which is persecuted by leading ZANU party. Impairment of ability to earn living constitutes persecution. 2. U. v. Refugee Status Determination Officer [country conditions?] Refugee Appeal Board, 1 December 2002; affirmed decision below Homosexual man fearing return to Nigeria failed to supply evidence that laws against homosexual conduct are enforced. NEW ZEALAND = 8 cases 1. Zaoui v. Attorney General [detention; security threat] Supreme Court of NZ; 9 Dec. 2004, [2005] 1 NZLR 577 Algerian arrived in NZ on false passport; high profile member of Islamic Salvation Front, feared persecution in Algeria; granted refugee status in NZ in 2003, but NZ gvt filed security risk certificate 20 Mar. 2003; said Art. 33.2 security danger = can refoule him. Had been convicted in Belgium & France; Swiss government said he endangered Swiss security. Had been detained in NZ for 22 months pending security risk determination. NZ conceded no risk to violence in NZ but potentially elsewhere. Issue in case = can he be detained longer while they litigate this? Answer: NO – too long without bail Court has jurisdiction to review detention of asylum seeker held pending security risk assessment [all about inherent juris of NZ courts; didn’t decide the security issue] 2. Sakran v. Min of Immigration [credibility] High Court Christchurch, 18 Nov. 2003; reversed Refugee Status App. Authority Coptic Christian from Sudan feared persecution/forced conscription/conversion to Islam; found not credible because of 1) stamps in passport showing reentry to Sudan & 2) had concealed ref application in Kenya Reversed RSAA decision & remanded: “Overemphasis on credibility” of claimant; so long as credible about his religion, crucial evidence = country conditions & NOT personal details, so his credibility about other issues not relevant. Also hadn’t been questioned & given chance to explain factors used against him. 3. Jiao v. RSAA [standards of proof] 29 July 2002 [2002] NZAR845; affirmed Refugee Status App. Authority Discussion of burden of proof, and the “inquisitorial” process, in light of the amendment of domestic legislation re B of P. On whole, fair evaluation of asylum seeker’s evidence. 4. A, B, C v. Chief Exec., Dept. of Labour [exclusion; humanitarian protection] High Court; 8 June 2001; appeal allowed Peruvian who had infiltrated Shining Path, cooperated in torture (1 incident), and therefore is excluded under Art 1F(a), though has well-founded fear of persecution.

Appeal allowed and case remanded for separate evaluation of husband & wife, and clear findings on humanitarian circumstances to allow them to stay. Decision not focused on Art. 1 F (a). 5. DG v. RSAA & Chief Exec, Dept of Labour [persecution; nexus to protected grounds] High Court of NZ (Wellington) ; 5 June 2001; affirmed Refugee Status App. Authority Chinese woman in Indonesia; didn’t convince RSAA of real risk of persecution based on ethnic group. 6. T v. Refugee Status Appeals Authority [standards of proof] High Court (Wellington); 23 May 2001; affirmed RSAA Vietnamese student, active in politics, fears persecution if returned to VN. Issue = correct B of P. Asylum seeker has the burden of proof, but there is a low threshold, and the asylum seeker gets the benefit of the doubt. Due to the non-adversarial nature of hearing, both asylum seeker & officer share responsibility. It is more correct to say the asylum seeker has the “responsibility to establish the claim” versus “B of P,” but evidence supports decision here. 7. S v. RSAA [exclusion] Court of Appeals (Wellington); 2 April 1998 Sri Lankan joined communist group, smashed government shops to help the “uprising,” high on heroin. Fled Sri Lanka after summary executions of group members . Excluded by Art. 1 F (b) [serious non political crime]. Court rejects balancing seriousness of persecution vs gravity of offense. Only issue = is it serious non pol crime [that may require balancing] BUT NO balancing of the consequences if returned 8. Butler v. AG [internal protection alternative] Court of Appeals 13 Oct. 1997; dismissed appeal Irish Peoples Liberation Org member, sentenced to 5 years in Belfast. While on appeal in UK, applied for asylum in NA. Rejected because fears persecution in Northern Ireland, but not in rest of UK. AUSTRALIA = 51 cases 1. SVTB v Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Australia, 3 June 2005 ; appeal dismissed Single Albanian woman vulnerable to robbery, rape, and kidnapping because she lacks the protection of a male family member is not subject to persecution. [persecution; vulnerable groups] 2. NBFP v Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Australia, 31 May 2005; appeal dismissed

ietnamese fisherman who disseminated anti-government pamphlets on behalf of the "Resistance Force" and feared retribution in the form of refusal of "household registration" needed to secure access to various government benefits; not subject to serious harm. [persecution] 3. NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Appeals, 26 May 2005; appeal dismissed Recently converted Iranian member of the (Christian) Uniting Church who feared persecution under apostasy laws, in principle exposing him to the risk of execution. Country conditions reports indicate quiet practice of Christianity in Iran will not risk persecution. [religion; country conditions] 4. VNAY v Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Appeals, 13 May 2005; appeal dismissed Sri Lankan tour operator who feared death at the hands of a prominent politician to whom he lent a vehicle which was allegedly involved in the commission of a murder; denied because no nexus between threats and protected grounds. [grounds of persecution] 5. SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Appeals, 17 March 2005; appeal permitted Sri Lankan soldier who feared persecution at the hands of the LTTE (Tigers), but admitted that during military service he resorted to threats and violence to extract information from Tamil civilians; Administrative Appeals Tribunal made jurisdictional error regarding elements of crime against humanity, and remanded to AAT. [exclusion]

CANADA 1. Zazai v Minister of Citizenship and Immigration [exclusion] Federal Court of Appeal; 20 September 2005; 2005 F.C.A. 303 Afghan stowaway was a former captain in KHAD, a secret service organization which tortured and "eliminated" opponents of the Taliban government. Canadian, and international law, prohibits complicity in the commission of crimes against humanity. imbedded in Canadian law. 2. Williams v Canada (MCI) Federal Court of Appeal; 12 April 2005; Williams v. Canada, 2005 F.C.A. 126. Rwandan citizen born to a Rwandan father and a Ugandan mother could access citizenship of both countries. He feared return to Rwanda but not Uganda. If he were to

return to Uganda, in order to remain he would have to renounce Rwandan citizenship. Denied refugee status. 3. Lai v Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Appeal; 11 April 2005; Lai v. Minister for Immigration and Multicultrual and Indigenous Affairs, 2005 F.C.A. 125. Chinese couple had arrest warrants issued against them by the Chinese government in relation to a large-scale smuggling operation. They claimed they feared persecution if returned to China because of their political opinions as well as their memberships of the particular social group 'social business persons.' But they were excluded because of serious non-political crimes they had committed. [exclusion; social group] 4. Fernandopulle v Canada (MCI) [changed circumstances] Federal Court of Appeal; 8 March 2005; Fernandopulle v. Canada, 2005 A.C.W.S.J. 5003 Tamil man from Sri Lanka who had been detained, questioned and beaten by the police and feared similar treatment if he was returned because the authorities believed he was collaborating with the Tamil Tigers. But a cease fire had led to a dramatic improvement in conditions which eliminates the need for refugee status. The rebuttable presumption in law of the UN handbook is not necessarily law in Canada and can be read in a multitude of ways. 5. Rou Lan Xie v Minister of Citizenship and Immigration [exclusion] Federal Court of Appeal; 30 June 2004; Rou Lan Xie v. Minister of Citizenship and Immigrations, 2004 D.L.R. LEXIS 306 Senior trade official fears torture by government authorities for her refusal to engage in corrupt practices, but she faces criminal charges in China for embezzlement of $2.7 million. A purely economic offense can be grounds for exclusion of refugee status.