Supreme Administrative Court Decision of 31 October 2002 (Summary)
|Publisher||Finland: Supreme Administrative Court|
|Author||Supreme Administrative Court|
|Publication Date||31 October 2002|
|Citation / Document Symbol||KHO:2002:69|
|Cite as||Supreme Administrative Court Decision of 31 October 2002 (Summary), KHO:2002:69, Finland: Supreme Administrative Court, 31 October 2002, available at: http://www.refworld.org/docid/421e06774.html [accessed 15 March 2014]|
|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.|
There were no legal obstacles to the return of a stateless Palestinian, registered in an UNRWA refugee camp in Lebanon, to his country of habitual residence Lebanon and to resorting again to the assistance provided by UNRWA. There were, furthermore, no such facts presented in the case which would have indicated that his security or necessary livelihood would seriously be jeopardised and thus prevent his return to Lebanon. He was, thus, not within the scope of application of Article 1D of the 1951 Geneva Convention, nor could he be considered to benefit from asylum pursuant to Section 30 of the Aliens' Act or a residence permit on grounds of need of protection pursuant to Section 31 of the Aliens' Act. Also, refusing to grant a residence permit was not considered to be manifestly unreasonable. In the comprehensive evaluation of the case no obstacles to the refusal of entry and to return to the country of habitual residence were found.
Convention Relating to the Status of Refugees Article 1D
Aliens' Act sections 20, 30, 31, 37, 38 and 43
2. Procedure in the Supreme Administrative Court
Demands in the Supreme Administrative Court
X has applied for a leave to appeal on the decision of the Helsinki Administrative Court on the grounds that in respect of the uniformity of the application of the law, particularly as regards the interpretation of Article 1 D of the 1951 Geneva Convention, and legal practice it is important to bring the case before the Supreme Administrative Court to be examined. X has not left Lebanon for reasons of personal convenience. There is also a weighty reason to grant a leave to appeal as regards the issues of residence permit and refusal of entry.
The Helsinki Administrative Court has, in one of its decisions given on 22 March 2002, applied Article 1D when holding that a person, who cannot safely return to Lebanon, must be considered, pursuant to Article 1D, ipso facto a refugee as meant in the 1951 Geneva Convention.
When drafting the 1951 Geneva Convention Lebanon and some other State Parties, who had given the UN an opportunity to establish UNRWA camps, explicitly demanded that the 1951 Geneva Convention attach a mechanism according to which the refugees living in the camps would not be left to the responsibility of the mentioned states should the assistance of UNRWA cease. The wording of the 1951 Geneva Convention indicates that when such protection or assistance from any organ or agency of the United Nations ceases for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of the 1951 Geneva Convention. In practice, this provision means that if the person's right to receive protection or assistance from the UNRWA has ceased, he must be granted asylum in Finland.
UNRWA does not offer protection but only assistance and its mandate does not include any forms of police or security measures for protection. The security of the camps is de facto in the hands of Syria, and there are various security committees in the camps which function under the control of Syrian security service. Lebanese authorities have no jurisdiction in the camps. These are the reasons X's possibility to receive assistance from the UNRWA has ceased.
X has stated as grounds for his asylum appeal that since 1990 he has belonged to the Democratic Front which had offices in the camp and that his duty was to act as a guard. X had wanted to resign from the organisation in 1993 but he had not been allowed to leave the organisation and was given guarding tasks. He had been detained in the camp by Syrians for nine days four months prior to entering Finland. During his detention he had been treated inhumanly. X had been subjected to a direct security threat by the Syrian authorities, and his fear is well-founded on grounds of having been subjected to arbitrary suspicions of the Syrian authorities. As the Syrian authorities have information on him, the risk to be resubjected to violations of his rights is considerable if he is returned to Lebanon.
X is ipso facto a refugee pursuant to Article 1 D of the 1951 Geneva Convention. He must be granted asylum pursuant to Section 30 of the Aliens' Act.
X has also demanded suspension of the removal to Lebanon until the application for a leave to appeal concerning asylum and residence permit is processed.
The Supreme Administrative Court, in its decision on 27 June 2002 No. 1692 prohibited, the execution of the removal decision until the decision on the application for the leave to appeal is made or until it otherwise orders.
The Directorate of Immigration has given its statement on the application for a leave to appeal and the appeal. X has been given an opportunity to give his rejoinder.
The decision of the Supreme Administrative Court:
The leave to appeal is granted and the appeal is examined.
1. The demand for an oral hearing is rejected.
2. The appeal is rejected. The decision of the Helsinki Administrative Court is not revised.
3. Statement of the reasons by the court
1. X has demanded an oral hearing in the Supreme Administrative Court on grounds of the need to conduct a comprehensive evaluation in the case. There has, however, not been any presentation of such relevant new facts that would be justify an oral hearing in the Supreme Administrative Court.
2. X has claimed asylum and residence permit in Finland on 15 April 1999. X has been within the educational, health, social and other services offered by the UNRWA in his country of habitual residence Lebanon. X had left Lebanon without difficulties with a refugee's travel document issued to him by the authorities of the country.
Chapter 5 of the Aliens' Act on granting international protection includes provisions on granting asylum (Section 30) and the need of protection (Section 31). The Act includes no specific provisions on the above mentioned Palestinian refugees. Such provisions are, however, included in the 1951 Geneva Convention Relating to the Status of Refugees which has been enforced with a Decree issued on 5 December 1968 (SopS n:o 77/1968). Section 1 Subsection 1 of the Aliens' Act refers also to international treaties binding on Finland as applicable law and regulations.
Pursuant to Article 1 D paragraph 1 the mentioned 1951 Convention is not applied to persons who presently receive protection or assistance from other United Nation's organs or agencies than the UNHCR. Pursuant to paragraph 2 when such protection or assistance ceases for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
Article 1 D of the 1951 Convention is open to interpretation, and various State Parties have applied it differently.
UNHCR, responsible for the implementation of the 1951 Convention in cooperation with the State Parties, has issued a Handbook on Procedures and Criteria for Determining Refugee Status. Pursuant to paragraph 143 of the Handbook, with regard to refugees from Palestine, it is noted that UNRWA operates only in certain areas of the Middle East, and it is only there that its protection or assistance are given. Thus, a refugee from Palestine who finds himself outside that area does not enjoy the assistance mentioned and may be considered for determination of his refugee status under the criteria of the 1951 Convention. It should normally be sufficient to establish that the circumstances which originally made him qualify for protection or assistance from UNRWA still persist and that he has neither ceased to be a refugee under one of the cessation clauses nor is excluded from the application of the Convention under one of the exclusion clauses.
UNHCR has, further, issued a note (September 2001) in which it has clarified its understanding on the interpretation of Article 1 D. UNHCR has stated that in cases where a refugee from Palestine is outside UNRWA's area of operations he or she falls within paragraph 2 of Article 1 D - "ceases for any reason". When this provision is applicable a refugee is ipso facto entitled to the benefits of the 1951 Convention. According to UNHCR this is the case both when a refugee cannot legally return to UNRWA's area of operation to his country of habitual residence and when he is unwilling to return to his country of habitual residence because of threats to his or her life or freedom or other serious protection-related reasons. However, if a refugee has left UNRWA's area of operation, for e.g., lack of educational and work opportunities or other related reasons of personal convenience, he is not entitled, in the country where he seeks protection, to the benefits of the 1951 Convention and is not granted ipso facto the status of a Convention refugee. In a later note of UNHCR (October 2002) a threat to physical safety has been considered an obstacle to return as opposed to a threat to life.
The Council of European Union accepted on 4 March 1996 a Joint Position on the harmonised application of the concept of refugee laid down in Article 1 of the 1951 Convention. The Joint Position is meant to be a guideline to the administrative organs of the Member States and is not binding upon the judicial power. In paragraph 12 of the Joint Position it is stated in Article 1 D of the 1951 Convention that if a person intentionally withdraws from the protection and assistance mentioned in Article 1 D he cannot benefit without specific measures but in these kind of cases Article 1 A is, as a rule, applied.
The regulations of Article 1 D must be applied to X, who is a stateless Palestinian registered by UNRWA. According to the available information there are no legal obstacles to X's return to Lebanon. Upon return to Lebanon he maintains the possibility of assistance offered by UNRWA. Therefore, it cannot be deduced from the regulations of Article 1 D that X would benefit directly pursuant to this article from the rights granted by the 1951 Convention.
According to the documents X has lived in northern Lebanon in Nahr el Bared- camp, which is administered by UNRWA. There are several competing political groups active in the camp. X has presented as grounds for his asylum claim the threat to him by the Democratic Front and other organisations active in the camp and Syrians, together with various problems relating to his livelihood and housing. The Supreme Administrative Court holds, with similar grounds of the Helsinki Administrative Court, that no such facts have been presented concerning X's security or necessary livelihood which would hinder him from returning to his country of habitual residence Lebanon. Therefore it can not be held that his possibility to further receive assistance from UNRWA would have ceased in a manner meant in Article 1 D paragraph 2 of the 1951 Convention.
On the above mentioned grounds X does not ipso facto benefit from the rights of the 1951 Convention. AX must not be granted, pursuant to Article 1 D, refugee status, the grounds of which are also laid down in Section 30 of the Aliens' Act. Taking into consideration Article 1 D of the 1951 Convention X is not within the scope of application of the Convention.
X's right to asylum and residence permit, together with the prerequisites of involuntary removal from the country, must be examined according to national legislation without prejudice to the fact that he is not within the scope of application of the 1951 Convention.
The Supreme Administrative Court holds, similarly to the Helsinki Administrative Court, that X has not shown the probability, that he would, pursuant to Section 30 of the Aliens' Act, have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in his country of habitual residence.
Pursuant to Section 31 of the Aliens' Act an alien residing in the country can be granted a residence permit on grounds of need of protection if he has a fear in his country of habitual residence of torture or other forms of inhuman or degrading treatment. Similar to the grounds of the Helsinki Administrative Court, the Supreme Administrative Court holds that X has not presented such facts according to which there would be a well-founded reason to believe he is in danger of being subjected to serious violations of his rights or inhuman or degrading treatment in his country of habitual residence. It cannot be deduced from the limited right of stateless Palestinians to practice various professions, and i.a., their subjection to societal discrimination, that X could be considered to be in need of international protection as meant in the provision at hand. X cannot, therefore, be granted a residence permit on grounds of need of protection as laid down in Section 31 of the Aliens' Act.
According to the available information social, economic and health conditions in the camps of the Palestinian refugees, particularly in Nahr el Bared, are poor. UNRWA's economic capacity to help refugees has deteriorated. Taken into consideration all facts presented in the case it cannot, however, be considered that the decision of the Directorate of Immigration to reject residence permit would have been manifestly unreasonable pursuant to Section 20 Subsection 1 paragraph 3 of the Aliens' Act.
As concerns the refusal of entry the Supreme Administrative Court holds, similarly to the Helsinki Administrative Court, that A can be returned to his country of habitual residence and given a prohibition of re-entry.