Helsinki Administrative Court Decision of 15 September 2004
|Publisher||Finland: Helsinki Administrative Court|
|Author||Helsinki Administrative Court|
|Publication Date||15 September 2004|
|Citation / Document Symbol||04/1240/7|
|Cite as||Helsinki Administrative Court Decision of 15 September 2004, 04/1240/7, Finland: Helsinki Administrative Court, 15 September 2004, available at: http://www.refworld.org/cases,FIN_HAC,421f08404.html [accessed 23 July 2017]|
1. Demands in the Administrative Court
The decision of the Directorate of Immigration must be reversed and the applicant be granted asylum or a residence permit on grounds of need of protection.
The case is based on the interpretation of Article 1 D of the 1951 Geneva Convention Relating to the Status of Refugees. According to UNHCR, if a stateless Palestinian registered by UNRWA has fled and does not want to return to his country of habitual residence in the area of UNRWA's operation for protection related reasons he must be recognised, pursuant to Article 1 D (2) ipso facto as a refugee. Only in situations where an individual has left the area of operation for so called reasons of personal convenience he cannot benefit from Article 1 D (2).
Principles accepted by UNHCR must be followed in the asylum procedure as ratio legis and pursuant to the legal practice of the Supreme Administrative Court.
The appellant is a stateless Palestinian registered by UNRWA, has left UNRWA's area of operations and Gaza and cannot return there for serious security related reasons, i.e., because he cannot receive protection in Gaza. The decision subject to appeal does not clearly state, whether the appellant even could de facto return under the prevailing circumstances to Gaza. A totally irrelevant fact that the registration of UNRWA and the right to services does not cease even if the individual resides outside the area is emphasized. UNRWA does not provide protection but only assistance. The appellant has left the area for security related reasons, not because he does not receive UNRWA's assistance. Taking into consideration the prevailing human rights and security situation in Israel and the Occupied Territories it can be stated that sufficient evidence has been presented in the case to support the fact that the appellant cannot safely return to Gaza.
The appellant is, pursuant to Article 1 D (2) of the 1951 Geneva Convention, a refugee ipso facto.
His refugee status must also be recognised in Finland and he must be granted asylum. The decision of the Directorate of Immigration is illegal also by virtue of Section 31 and 38.1 of the Aliens' Act.
UNHCR's Note on the Applicability of Article 1 D of the 1951 Convention (September 2001) concerning Palestinians' possibilities to return to the Middle East is enclosed to the appeal.
2. Procedure in the Court
The Directorate of Immigration has given its statement. The prerequisites for granting asylum or residence permit on grounds of need of protection are not satisfied in the appellant's case for the reasons stated in the decision subject to appeal. Not all stateless refugees who have left UNRWA's area of operation or Gaza have been considered to be in need of protection. The Directorate of Immigration has, however, at no stage given a decision to return the appellant to his region of origin.
The appellant has been issued a residence permit because rejecting the permit has been considered unreasonable due to the long procedure and the ties formed during this period. As the appellant has been issued a residence permit entitling him to permanent residence, it has not been necessary to evaluate the factual possibilities to return him in the decision subject to appeal.
According to the appeal the appellant has left Gaza for security related reasons. According to the documents he left Gaza voluntarily and moved to Romania to pursue his studies.
The appellant has been reserved an opportunity to give his rejoinder on the statement. He has amended his appeal on 26 June 2003. The appellant cannot return to Gaza even if he, in spite of security reasons, could or would. He has tried to enter Gaza without success. The Israeli Embassy in Finland has informed him that his entry into the Israeli territory has been prohibited. Thus, he must be recognised ipso facto as a refugee.
The appellant has in his amendment to the appeal demanded that there be an oral hearing in his case during which he can tell about his grounds for asylum and also on the reasons for which he has not been able to return to Israel and Gaza in spite of his efforts.
The amendment includes a letter written by the appellant, dated 13 April 2003, and copies of the identity card of the appellant's father in Arabic and a travel information leaflet issued by the Ministry of Foreign Affairs on 15 January 2003.
Helsinki Administrative Court holds that the appellant must be granted asylum and revises the decision of the Directorate of Immigration and returns the case to the Directorate for a new procedure.
4. Statement of the reasons by the Court
Pursuant to Article 1 D paragraph 1 of the 1951 Geneva Convention Relating to the Status of Refugees the mentioned convention shall not apply to persons who are at present receiving assistance or protection from organs or agencies of the United Nations other than the UNHCR. Pursuant to paragraph 2 of the mentioned Article when such protection or assistance has ceased 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.
UNHCR, responsible for the implementation of the 1951 Geneva Convention in cooperation with the State Parties, has given a note in September 2001, where it has clarified its understanding of the interpretation of Article 1 D of the Convention. UNHCR has stated, that in those cases where a refugee from Palestine has left has left UNRWA's (United Nations Relief and Works Agency for Palestine Refugees in the Near East) area of operations paragraph 2 of Article 1 D on the cessation of assistance "for any reason" shall be applied. When the prerequisites of the application of the provision are satisfied a refugee ipso facto benefits from the rights laid down in the Convention. According to UNHCR this is the case both when a refugee cannot legally return to UNRWA's area of operations to his country of habitual residence and when he is unwilling to return to his country of residence on grounds of threats to his life or freedom or other compelling, protection related reasons. However, if a refugee has left UNRWA's area of operations, 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 appellant is a stateless Palestinian born in Gaza in 1972 and registered by UNRWA. He has received educational, health and other services offered by UNRWA when he lived in Gaza. He would have, upon return to Gaza, an opportunity to resort to the assistance offered by UNRWA. According to the available information the approval of Israel is always needed for return to Gaza. The Directorate of Immigration has not during its procedure examined whether the appellant can de facto return legally to Gaza. On the other hand, the appellant has not presented any evidence that would credibly show that he cannot return to Gaza.
The appellant says that he has studied in Romania between 1991 and 1997. He has not been politically or religiously active and has not been a member of any organisation. According to the appellant Palestinian authorities have arrested him for one day in 1994. The appellant has also told that a police officer named Rezee El-Ajrami called his father in September 1994 and threatened to kill the appellant because his grandfather had killed the wife of the police officer's brother. The appellant, furthermore, says that masked members of Hamas have demanded him to apologise to two leaders of the organisation for his non-Islamic behaviour. The appellant says that he has not problems with Israeli authorities.
The appellant has not been able to prove that he has left Gaza for compelling protection related reasons. Nor is there a reason to believe that he would have, upon return to Gaza, a well-founded reason to fear persecution for personal reasons. However, considering the recent information on the security and human rights situation in Gaza, the Administrative Court holds that it has not been proven that the appellant could return to Gaza without a serious danger to his physical security. The appellant is, therefore, entitled to the benefits of the 1951 Geneva Convention. He shall be granted asylum.
The Administrative Court has voted on the decision. The dissenting opinion is enclosed to the decision.
Dissenting opinion of the Administrative Court Judge Liisa Heikkilä:
I reject the appeal.
The appellant is a stateless Palestinian born in 1972 and registered by UNRWA. He has received educational, health and other services offered by UNRWA when he lived in Gaza. According to his own account he has left Israel for the last time in 1994 without any difficulties with a travel document issued to him by Israel and moved to Romania to continue his studies in medicine. He graduated as a physician, according to his own account, in 1997 and arrived in Finland on 5 March 1998 with a false passport. He, further, says that his identity number in Israel is Gaza 92144202 but he was forced to surrender his red identity card to the police upon leaving abroad. He also says that he has not had problems with Israeli authorities and that his identity can be verified from the Israeli Embassy. He had, however, difficulties with Palestinian authorities and threats by Hamas in 1994. Later he has referred to the fact that he has not been allowed to travel to Gaza from Cairo when he tried to travel in January 2003 and has presented travel ticket receipts as evidence on his attempt. He has, further, referred to the generally unsafe situation in Gaza strip. The appellant was granted a permanent residence permit on 20 December 2002 after the Directorate of Immigration's decision, which is subject to appeal.
The provisions of Article 1 D of the 1951 Geneva Convention apply to the appellant. According to the available information the approval of Israel is, per se, needed for return to Gaza but in the present case there are no facts showing well-founded reasons to believe that the appellant would have legal obstacles to his return to Gaza. The documents do not show that the appellant would have left Gaza in 1994 for security related reasons. There have, furthermore, been no personal reasons related to the appellant concerning his physical security or necessary livelihood which could be considered as obstacles to his return to Gaza. Therefore it cannot be considered that his possibility to resort to the assistance offered by UNRWA would have ceased as meant in Article 1 D paragraph 1 of the 1951 Convention and that he would ipso facto be entitled to the benefits of the Convention. He has, furthermore, not shown that he would have, pursuant to Section 30 Subsection 1 of the Aliens' Act, a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. He cannot, therefore, be granted asylum.
Taking into consideration the above mentioned statement, the appellant has not shown a well-founded reason to assume that he is in Gaza in danger of serious violations of rights or inhuman or degrading treatment which would necessitate international protection. The appellant cannot, therefore, be granted, pursuant to Section 31 of the Aliens' Act a residence permit on grounds of need of protection.