Decision No. 498/2003 of the Committee of Injunctions of the Council of State

Summary of Facts: The Committee set up by virtue of art. 3 para. 5 of P.D. 61/1999 (Asylum Appeals Board) espoused the relevant claim of Mr. R.R., an unaccompanied minor, asylum seeker from Afghanistan and advised, by majority, in favor of the applicant's request to be recognized as a refugee, considering that he fulfills the conditions of article 1 Á 2 of the 1951 Geneva Convention. In particular, it accepted that the applicant «left his country at the age of 17, because of persecutions the Hazara ethnic group – to which he belongs – suffered from the Taliban» and that «he has lost traces of his parents and the remaining members of his family». The Minister of Public Order, though, against the above-mentioned opinion, rejected Mr. R.R.'s application, on the following reasoning: «There is no evidence demonstrating that the applicant suffered or is in danger of suffering personal persecution by the authorities of his country for reasons of race, religion, nationality, membership of a particular social group or political opinion». Mr. R.R. applied to the Council of State and requested to annul the negative decision and to receive provisional judicial protection.

Reasoning and decision: The Injunctions' Committee considered that the Minister's decision under review, which rejected Mr. R.R.'s asylum application, constitutes an administrative act with negative content and its execution cannot, thus, be suspended. Given, though, the facts admitted by the Appeals' Board in its formulated opinion (whose accuracy was disputed by the Minister of Public Order, without specific reasoning) the Injunctions Committee considers that any measure taken, on the grounds of the decision under review, to deport the applicant from Greece and return him to Afghanistan would cause irremediable damage to this latter, in case his pending application to annul the said act succeeded, because it would have put his freedom and security in danger. Furthermore, even if it were possible to return the applicant to a third country (it should be noted, in this context, that the applicant does not hold any passport or other travel document), such action would break the applicant's material links with Greece, established, as it appears from his file, since more than two years; in fact, the applicant is hosted in the Anogeia (Island of Crete) Home for Minors and follows there a specific educational program.

By applying article 59 para. 8 of P.D. 18/1989, as replaced by article 36 of L. 2721/1999, and by application of article 2 para. 7 of P.D. 61/1999 which stipulates that persons who have applied for international protection on the grounds of the 1951 Geneva Convention are given the relevant special document which allows beneficiaries the right to work, in order to cover their immediate needs and, also, if they fulfill certain additional conditions, the right to receive free medical care, the Injunctions' Committee decides that the Administration should not proceed to withholding the asylum applicant's special card or, in case the Administration had already taken it away, it should return it to the applicant, so that this latter may return completely to the status under which he was before the ministerial decision under review rejected his application.

The Injunctions' Committee ordered the Administration to refrain, till a final decision on the said pending application to annul is issued by the Council of State, from any action taken exclusively on the grounds of the Ministerial decision, rejecting the applicant's asylum application, under review, which would result to the application having to forcibly leave Greece.

Note: The Injunctions' Committee took a similar decision in the case under registration number 500/2003, which referred to an application to annul lodged by an unaccompanied minor, asylum applicant from Afghanistan, hosted during two years in the Anogeia (Island of Crete) Home for Minors.