M.H.A. v. THE NETHERLANDS
Inadmissible
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr M.H.A., is an Afghan national who was born in 1994 and lives in Soesterberg. The duty judge decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Mr W. Boelens, a lawyer practising in Utrecht. 2. 3. The applicant was born in Uruzgan, Afghanistan, but lived in Kabul for three years prior to leaving the country. He is a Muslim of Hazara ethnicity. The applicant entered the Netherlands on 5 April 2011 after travelling through Pakistan, Iran, Greece, Italy and France. 4. The applicant lodged his first asylum application in the Netherlands on 17 May 2011. He submitted, inter alia, that he had left Afghanistan as he had feared that he would face acts of revenge after being involved in an incident in his brother’s shop in Kabul, where he had, in self-defence, wounded a man who had later died. That asylum application was rejected, with a final decision being handed down on 23 October 2013 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 5. On 9 April 2013 the applicant was taken to immigration detention. After indicating that he wished to make a new asylum application he was transferred to the asylum application centre (aanmeldcentrum) at Schiphol, where he lodged his second asylum application on 16 July 2013. 6. In an interview with the immigration authorities on the same day, the applicant stated that he had converted to Christianity. He submitted that his first encounter with the Christian religion had been in Greece, that he had been to church twice in the Netherlands and so already had a certain interest in Christianity. He stated that after he had been taken into immigration detention, he had been given a Bible, which he had started to read, and that he had later converted. On 12 May 2013 he had been baptised, while in detention. In support of his statement, the applicant submitted a baptism certificate dated 12 May 2013, issued by the Kores Church in Apeldoorn, and a letter dated 8 July 2013 from a minister, Ms A., of the Netherlands Protestant Church, stating that the applicant had attended and participated in Bible groups. 7. The Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) rejected the applicant’s new asylum request on 22 July 2013, finding that his conversion was not credible. He referred to the proceedings on the applicant’s first asylum application, where he had not mentioned any interest in Christianity and had described himself as a practising Muslim. The Deputy Minister also referred to a lack of detail about the timing of the applicant’s decision to convert and several statements made during his interview that were vague and inconsistent. These included the statement that he did not know the date of his baptism and that he belonged to the Catholic Church, which he had later retracted by saying that he was a Protestant. He had also sometimes given inadequate answers when asked about the reason for his conversion, such as the statement that those who accept Jesus Christ did not harm others and that Islam represented violence, which he had failed to explain convincingly. The Deputy Minister added that knowledge of the Bible could be easily acquired, that it was relatively easy to join a church community and that it was known, ex officio, that the Kores Church readily carried out baptisms. 8. Following a hearing on 7 January 2014, which was held in the presence of the applicant and counsel, the Regional Court of The Hague dismissed an appeal by the applicant on 11 February 2014. Noting the various documents that had been submitted by the applicant, including a letter dated 13 December 2013 from the Elim Foundation (Stichting Elim) stating that the applicant had participated in meetings and activities at the Elim evangelical church and that there were no doubts about the sincerity of his belief, the court found that the applicant had introduced new facts in support of his latest asylum application. Nevertheless, the Regional Court concluded that the Deputy Minister had acted reasonably in coming to the conclusion that the applicant’s conversion lacked credibility. In that regard it took into account the fact that the applicant’s statements about the reasons for his decision to become a Christian had been vague, and that it could be expected from a convert to provide details about the process of conversion, especially if the person was from a country where conversion from the predominant religion could lead to punishment or be socially unacceptable. The Regional Court also rejected the applicant’s argument that he ran a risk of treatment in violation of Article 3 of the Convention in Kabul because of his Hazara ethnicity. 9. A further appeal by the applicant was dismissed on 14 July 2014 by the Administrative Jurisdiction Division. On 9 July 2015 the applicant was again taken to immigration detention. 10. On 13 July 2015 the applicant lodged a third asylum application. In an interview with the immigration authorities on 22 July 2015, in the presence of his counsel, the applicant stated that his faith had deepened since his conversion, that he had been expanding his knowledge of Christianity, and that he had been attending Bible studies and services at two churches, the Huis van Vrede (“The House of Peace”) and the International Christian Fellowship, both based in Utrecht. The applicant submitted that his conversion had given him peace and happiness and that the concepts of forgiveness and love appealed to him. Therefore, he had a deep-rooted internal motivation for his conversion. The applicant added that he had not informed anyone in Afghanistan about his conversion. He also submitted several documents, including a letter from the Dutch Council for Refugees (Vereniging VluchtelingenWerk Nederland), stating that the applicant had shown clear developments in his conversion process. He also submitted letters from ministers at the House of Peace and the International Christian Fellowship, stating that the applicant was an active member of those churches and attended their services, with the latter also stating that there were no doubts as to the sincerity of his conversion. He also submitted a letter from a Ms Z., confirming his attendance at Bible study groups. 11. On 24 July 2015 the applicant was notified of the Deputy Minister’s intention to declare the new asylum application inadmissible as no new elements or findings had arisen or been presented by the applicant that gave cause to reach a different decision than on the previous application. In that regard the Deputy Minister held, inter alia, that up to that point the asylum statements presented by the applicant had not been believed, including his conversion to Christianity. While there was no doubt that the applicant had been involved in church activities, that in itself did not contradict the finding that his conversion lacked credibility. The letters submitted by the applicant had not provided any insight as to how the authors of those letters had determined that a genuine conversion had taken place. They merely mentioned a number of religious aspects and matters of fact, such as the applicant’s attendance at church and Bible study meetings. The Deputy Minister held that, in general, the making of a plausible case for a genuine conversion involved convincing statements about the process of conversion and about the knowledge of Christianity. It was assumed that a decision to convert to another religion was preceded by a profound internal process. It was therefore expected of the applicant that he could describe that internal process in a convincing way. The Deputy Minister considered that the applicant’s statements about the course of events during the alleged process of conversion, namely that he had found peace and that that had been given to him by God, had not in any way demonstrated a deep-rooted conviction, but had rather been mere platitudes. 12. On 26 July 2015 the Deputy Minister declared the applicant’s third asylum application inadmissible. He also held that a letter from a friend of the applicant’s, written after notification of the Deputy Minister’s intention to declare the application inadmissible, in which the range of the applicant’s religious activities had been described, did not provide any further support for the applicant’s alleged conversion. 13. A hearing was held by the Regional Court of The Hague, sitting in Haarlem, on 13 August 2015, in the presence of the applicant and his counsel. On 21 August 2015 the Regional Court dismissed the applicant’s appeal and an accompanying application for a provisional measure of a stay of removal pending the appeal proceedings. It found that the applicant’s account of the reasons for and the process of his conversion continued to be insufficient, given that his statements in that connection were limited and of a general nature only. The court also held that the applicant’s statements had been unable to show that the intensification of his alleged conversion had been considered and deliberate. That was not altered by the fact that the applicant had in the meantime acquired more knowledge about the Bible and had been able to give an account of the activities undertaken by him in order, allegedly, to deepen his beliefs. The court considered that the statements made by the applicant in support of his third asylum application had not constituted new facts or altered circumstances that would allow for a judicial examination of the impugned decision in the same way as if it had been a rejection of a first application for asylum. The Regional Court also found that the letters, declarations and reports submitted by the applicant with his third asylum application had similarly not constituted new facts or altered circumstances. While it accepted that a declaration by a religious organisation might be capable of corroborating a conversion, the Regional Court held that it was nevertheless incumbent on the applicant himself to provide a convincing account of his conversion and of the process leading up to it. As to the report introduced by the applicant into the appeal proceedings by the Gift Foundation (Stichting Gave), an interdenominational organisation supporting churches in their contacts with refugees and asylum seekers, which stated that the applicant’s conversion was genuine, the Regional Court held that the applicant had failed to demonstrate why he had not been able to introduce that report into the proceedings during his previous asylum application. Furthermore, it found that the report had also provided insufficient insight into the reasons for the applicant’s conversion and the process of that conversion, and that it had been drafted by a person who was not a psychologist of religion, but who had nevertheless used a model developed by such a psychologist to assess the applicant’s conversion. For that reason, the report could not be given the same weight as if it had been drawn up by a psychologist of religion. As the sincerity of the applicant’s conversion was given no credence, the Regional Court did not find it necessary to examine documents on the general security situation for Christians in Afghanistan submitted by the applicant. Lastly, the Regional Court held that documents submitted by the applicant had failed to demonstrate that the security situation in Kabul had worsened for the Hazara ethnic group. 14. A further appeal by the applicant was dismissed on 29 September 2015 by the Administrative Jurisdiction Division. No further appeal lay against that decision. 15. The applicant’s removal to Kabul was scheduled for 14 December 2015. 16. The application was lodged with the Court on 13 December 2015. On 14 December 2015 the duty judge decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Afghanistan for the duration of the proceedings before it (Rule 39 of the Rules of Court). 17. The most recent official country assessment report on Afghanistan drawn up by the Netherlands Ministry of Foreign Affairs was published on 17 September 2014. The relevant parts of the report read: “Hazaras There are about 2.7 million Hazaras in Afghanistan – about 9% of the total Afghan population. Hazaras live mainly in the central mountainous part of Afghanistan and in the north, in the mountains of Badakhshan. Hazaras form a Shiite minority in Afghanistan. In the past they have often been victims of discrimination on political, religious and racial grounds. During the Taliban regime abuses against the Hazara population took place in central Afghanistan in particular. This is also the reason that Hazaras are concerned about reconciliation talks with the Taliban. Because Hazaras made an important contribution to the victory over the Taliban, their situation has meanwhile improved. They have made economic and political progress since 2001. The Hazara population is represented in government institutions more than in the past. ... Social discrimination (in the shape of extortion through illegal taxation, forced conscription, forced labour, physical abuse and detention) of Hazaras is widespread, especially in areas where they form a minority. Violent incidents inspired by discrimination can still occur. For example, tensions between Kuchi and Hazaras occasionally surface. No major incidents have occurred during the reporting period.” 18. The “Country of Origin Information Report: Afghanistan – Security Situation Update”, published in January 2016 by the European Asylum Support Office of the European Union, states the following in relation to the ethnic composition of the current population of Kabul: “Kabul is an ethnically diverse city, with communities of almost all ethnicities present in the country. Pashtuns, Tajiks, Hazaras, Uzbeks, Turkmen, Baluchs, Sikhs and Hindus all reside there with no group clearly dominating. As people tend to move to areas where they already have family or into particular districts as part of a larger group with the same ethnicity, different neighbourhoods have become associated with different ethnic groups.” 19. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan of 19 April 2016 provide the following on the situation of the Hazaras in Afghanistan: “III. Eligibility for International Protection ... UNHCR considers that in relation to individuals with the profiles outlined in this Section a particularly careful examination of possible risks is required. ... A. Potential Risk Profiles ... 13. Members of (Minority) Ethnic Groups ... As a result of a variety of historical population movements, both forced and voluntary, some members of ethnic groups now reside outside areas where they traditionally represented a majority. ... a member of an ethnic group or clan constituting a minority at the national level may not face any discrimination on the grounds of ethnicity in areas where this ethnic group or clan represents the local majority. ... b) Hazaras Hazaras have been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse. Hazaras have historically been marginalized and discriminated against by the Pashtuns. While they were reported to have made significant economic and political advances since the 2001 fall of the Taliban regime, more recently there has reportedly been a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and other AGEs [Anti-Government Elements]. ... e) Summary ... UNHCR considers that individuals who belong to one of Afghanistan’’s area of origin, and the history of inter-ethnic relations in that area. ... International protection needs based on ethnicity/race may overlap with those based on religion and/or (imputed) political opinion. Due consideration should also be given to whether other risk profiles outlined in these Guidelines apply to the person concerned.”