Decision No. 2659/2004 of the 4th Chamber of the Council of State
|Publisher||Greece: Council of State|
|Author||Council of State (4th Chamber)|
|Citation / Document Symbol||2659/2004|
|Other Languages / Attachments||Greek|
|Cite as||Decision No. 2659/2004 of the 4th Chamber of the Council of State, 2659/2004, Greece: Council of State, 2004, available at: http://www.refworld.org/docid/426f9a6b4.html [accessed 28 December 2014]|
|Comments||This is a summary in English provided by UNHCR Athens.|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Summary of facts: Mr. M.G., a Sri Lanka national, entered illegally into Greece on 14.6.2000 by sea near the area of Koroni Messinias. After he was arrested, he lodged, on 21.7.2000, an application for asylum. He claimed, in particular, that due to his ethnic origin (he belongs to the Tamil minority) he was arrested and tortured by the authorities of his country, that his brother had been assassinated for the same reasons and that, in case he were returned to his country of origin, his personal freedom, security and perhaps even his life would be in danger. His application was rejected, by a decision of the General Secretary of the Ministry of Public Order, dated 1.11.2001. The reasoning of the decision was that it was not proven that Mr. M. G. faced any danger of persecution in his country on one of the grounds stated in article 1 A 2 of the 1951 Convention on the Status of Refugees. When his appeal was examined before the Committee established by virtue of article 3 para. 5 of P.D. 61/1999, the applicant, who was present, assisted by an attorney-at-law and an interpreter, claimed, as documented in the relevant minutes, that he is an ethnic Tamil, he originated from the Jaffna area, two of his brothers were members of the L.T.T. rebel movement and were killed by Sril Lanka government forces and that, finally, in 1998 he moved illegally to the capital Colombo, where he was arrested, remained in prison for four months and, later, escaped. The Committee, though, opined, unanimously, that the conditions set by the law for refugee recognition are not fulfilled in the person of the applicant, since, according to the minutes of the meeting, "no evidence whatsoever confirms that [the applicant] suffered individual persecution by the authorities of his country for reasons of race, religion, nationality, membership of a particular social group or political opinion". However, it advised, by majority, the Minister of Public Order to grant the applicant residence on humanitarian grounds. The Minister of Public Order espoused this opinion and, by decision dated 27.6.2003, rejected Mr. M.G.'s application for asylum, repeating in the said decision the reasoning for rejection, included in the Committee's meeting minutes and further adding that the mere opposition to the regime of his country does not suffice to grant asylum and that he left his country in search of employment and in order to improve his living standards. The Minister, though, remained silent to the suggestion of the Committee to grant the rejected refugee residence permit on humanitarian grounds as per article 8 of P.D. 61/1999.
Mr. M.G. applied before the Council of State, requesting to annul the said negative administrative act, on the grounds not only of the 1951 Convention of the Status of Refugees, but also article 8 of the Constitution and 9 of the European Convention on Human Rights. In the writ of the application to annul he referred generally to the situation prevailing in Sri Lanka and the ties he had established in Greece during the period of his legal employment in the country. During the hearing of the case, he submitted, for the first time, a memorandum where he produced as proof of his fear of persecution the document dated 14.2.1998 by the "Chairman of the Sri Lankan Red Cross Organization".
Reasoning: A) As it appears from articles 24 and 25 of L. 1975/1991 as amended today, of the 1951 Convention and the 1967 Protocol on the Status of refugees and the P.D. 61/1999, the decision rejecting the application lodged by an alien requesting to be granted asylum according to article 1 A 2 of the 28.7.1951 international Geneva Convention must be specially reasoned by the competent authority and ascertain that, the specific case, there is no objectively well-founded fear of individual persecution in the applicant's country on one of the reasons mentioned in the said provision - race, religion, national origin, membership of a social group of political opinions. B) Taking into account the content of the ministerial act under review, the Court ruled that the said act is lawfully and adequately reasoned, insofar as the part rejecting the asylum application is concerned.. This is so, because, the correct interpretation of article 1 A 2 of the 1951 Convention on the Status of Refugees admitted that neither the applicant's opposition to the regime nor his Tamil ethnic origin alone, suffice, in principle for his refugee recognition. Furthermore, the court documents, and in particular the Advisory Committee minutes mention that the Committee considered the elements of his dossier, the applicant's claims and "everything else that appeared during the proceedings"; from these it appears that all the allegations submitted by the applicant during the examination of his claim were taken into account and the competent administrative authorities ruled that according to their judgment – which cannot be controlled from grounds of annulment - no risk of individual persecution of the applicant on one of the grounds mentioned in the said provision of the 1951 Convention exists. In view of the above, the Court rejected the grounds for annulment as unfounded, especially since the applicant did not claim - and it does not appear that he produced before the authorities – any evidence to corroborate his claim of well-founded fear of persecution in his country. C) Further to this, the Court rejected the grounds of violation of article 8 of the Constitution and 9 of the European Convention on Human Rights as well as the principles of proportionality and due diligence of the administration alleged by the applicant against the said ministerial act. It also rejected his claims relative to the ties he had established in Greece during the period of his legal employment in the country since such reasons do not influence upon the Administration's evaluation on granting or rejecting asylum. It also ruled that the document by the "Chairman of the Sri Lankan Red Cross Organization" produced by the applicant, for the first time during the hearing of the case was inadmissible. D) According the opinion of the chairperson, Councilor Ms A. Tsambasi and Judges E. Nikas and E. Mazos, the act under review is not adequately reasoned. This is because, the claim of the applicant before the Advisory Committee relative to the death of his brothers and his arrest and imprisonment were, in principle, matters of substance and needed special evaluation by the Administration. The reasoning, therefore, that appears in the act under review and the minutes of the Committee's meeting - especially given that these minutes do not detail the exact debates in the Committee - cannot be considered as full and adequate. E) Judge E. Mazos, expressed, further, the opinion that the minutes of the Committee should include not only the claims of the applicant alien but also the content of the questions put by the members of the Committee to the alien and the latter's replies, as well as a detailed evaluation of the claims produced and of any other evidence provided. This is required for, by the principles of due administration; the case is a hearing before an administrative organ, where the interested party is lawfully invited to appear in order to present his case, give explanations and possibly five supplementary evidence. In addition, this administrative procedure refers to the examination of an application for which it is expressly stipulated that no formal evidence is indispensable; the details of the discussions before the Committee might, hence, be crucial. Indeed, for this purpose exactly, paragraph 6 of article 3 of P.D. 61/1999, provides that the Committee is guaranteed secretarial support "by a relevant number of police officers and civilian staff of the Ministry for Public Order, exclusively entrusted with this task alone". The reference, finally, of all these information in the minutes of the Committee meetings in necessary, in order to allow the Court to feasibly control the reasoning of the Administration's decision on an application for granting refugee status. F) By interpreting article 8 of P,D, 61/1999 in combination with paragraph 8 of article 3 of the same legal text, the Court ruled that, in case an application for refugee recognition is definitely rejected, the Minister for Public Order is, in principle, obliged, before ordering the alien to leave Greece within a set deadline, to examine, also in view of the claims produced during the asylum procedure, whether there is a lawful case for granting the alien temporary stay in the country on humanitarian grounds. In any case, the alien is not prevented from lodging a relevant request and evidence after the ministerial decision rejecting his asylum application is issued. In the case under review, as it appears from the elements in the dossier, the ministerial decision under review ordered the applicant a two-month deadline to leave the country, without, beforehand, examining, also in view of the claims produced during the asylum procedure and the conditions prevailing in the country of origin, whether the applicant might have the right to a residence permit on humanitarian grounds as per article 8 para. 2 of P.D. 61/1999; this was also the majority opinion of the Advisory Committee, as it appears in the minutes. For this valid and founded reason, the decision under review must be annulled as inadequately reasoned, for the part that it sets the applicant a deadline to leave Greece. The case must return to the Administration which must examine whether it is the case to grant the applicant residence on humanitarian grounds.
The Council of State annulled the decision of the Ministry of Public Order under review for the part that it gives the applicant a two-month deadline to leave the country. It sends the case back to the Administration so as to investigate whether it is the case to grant the applicant residence on humanitarian grounds.