T.M. AND Y.A. v. THE NETHERLANDS
Inadmissible
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
1. The applicants, Ms T.M. and Mr Y.A., are a mother and son of Iranian nationality. They were born in 1961 and 1988 respectively and are currently living in the Netherlands. The duty judge decided that the applicants’ identities should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Mr P.C.M. Schijndel, a lawyer practising in The Hague. 2. 3. The applicants entered the Netherlands on 23 March 2014 holding a Schengen visa issued by the Netherlands consulate in Tehran, Iran for the purpose of visiting a family member. Their visa expired on 28 April 2014. On 27 May 2014 the applicants applied for asylum in the Netherlands. The applicants were interviewed individually by the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “the IND”) on 19 August 2014 and 22 September 2014. 4. Both applicants submitted that three or four days prior to their scheduled return to Iran from the Netherlands, the first applicant, who had been staying at a family member’s house, had been called by her daughter, E. The daughter had warned the applicants not to return to Iran as they were in danger because the house church which they attended had been raided by the Iranian authorities. Several people, including E.’s husband, had been arrested. The applicants had not been able to get in touch with E. since. They stated that that was the direct reason for their asylum application. 5. In her interviews the first applicant stated that a colleague in Iran, with whom she had worked since July or August 2013, had proselytised her. The colleague held house church meetings which the first applicant had attended for the first time in October or November 2013. During that visit, which the first applicant later confirmed had taken place on 24 November 2013, she had said a prayer in order to convert to Christianity. She had then informed her son, the second applicant, about her conversion after which the latter had joined her at the next house church meeting a week later. Prior to her visit to the house church she had been provided with a Bible by her colleague, which she had shared with her son and had kept on the open shelves of a bookcase in her house. She had chosen Christianity because she had been suffering because of Islam and therefore resented that religion, especially after she had been raped by a local mullah. She had taken the Bible with her to the Netherlands, despite being aware of possible negative repercussions if it had been discovered by the Iranian authorities at the airport. She had covered it with the outside of an Iranian newspaper and had hidden it among her clothes in her suitcase. 6. The second applicant stated in his interviews that at a certain point in time he had been introduced to Christianity by his mother, that this had triggered his curiosity about that religion, and that he had gone to the house church meetings with her. He had started to read more about Christianity on the Internet while in Iran and as a result his beliefs had strengthened. Also, he resented Islam, which he considered a violent religion, in contrast to the Christian faith, which appealed to him because of the precepts of forgiveness and love. The second applicant also stated that house church meetings had often been held at his mother’s colleague’s house and that no security measures had been taken to prevent their activities being discovered by the authorities. During such meetings the attendees would read the Bible or extracts from it and then hold a discussion. The second applicant added that he had shared a Bible with his mother and that it had been placed in different rooms in their house, including in a bookcase that could be partly closed. He added that although he said prayers during the house church meetings he had not said a prayer specifically for his conversion, which had been a process that had happened over the course of several meetings. 7. The applicants also stated that they had converted E. and her husband in December 2013. They added that they had been attending church services in the Netherlands and that their baptism was scheduled for October 2014. 8. The applicants were baptised at the Tilburg Evangelical Baptist Church (Evangelische Baptisten Gemeente Tilburg) on 19 October 2014. 9. On 20 November 2014 the applicants were notified of the intention of the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) to reject their asylum applications as their asylum statements had not been believed. The Deputy Minister stated that the applicant’s delay in lodging an asylum application raised doubts about the reasons for their application. The reasons they had given, that they had had difficulties in informing their family member in the Netherlands about the problems in Iran and that the first applicant had needed time to recover from an injury, did not excuse such a delay. As to the applicants’ conversion to Christianity, the Deputy Minister held that it did not appear that there had been a deep internal belief and a corresponding process of conversion, and that all of the activities they said they had been involved in Iran seemed very informal, especially considering the short length of time that had gone into their alleged conversion and for the first applicant to convert her son, daughter and son-in-law. The Deputy Minister held that the applicants’ statements about the house church meetings detracted from the credibility of their account as they had seemingly gained easy access to those meetings and because no security measures had been taken to ensure that they would not be discovered by the authorities, which was strange considering the situation for Christians in Iran. The Deputy Minister also held that both applicants had only given a superficial account of the conversion process, especially the timeline of the various events leading up to and following that process, the contacts with the first applicant’s colleague and about the people who had attended the house church meetings. Furthermore, the Deputy Minister noted that the applicants had made contradictory statements about where in their house the Bible had been kept, had also been unable to explain where the first applicant’s colleague had been able to get a copy of the Bible, and why they had taken the risk of travelling to the Netherlands with a Bible when they knew what the consequences would be if it was discovered by the Iranian authorities when leaving or returning to Iran. The Deputy Minister also noted that it was strange that the applicants had not been able to provide details about the telephone call from E., such as the information she had given about the raid at the house church, and why she had called the applicants’ relative rather than one of them directly. 10. On 10 December 2014, counsel for the applicants submitted their comments on the notification. 11. By decisions taken on 8 January 2015 the Deputy Minister, confirming the assessment in his notice of intent, rejected the applicants’ asylum applications. He added that the applicants’ baptism did not in itself constitute a fact that confirmed the sincerity of their conversion, as it was relatively easy to join a church and register oneself as a convert at a church. The fact that the applicants had demonstrated that they had some knowledge of the Bible did not invalidate the finding that their conversion lacked credibility as such knowledge was easily acquired. Furthermore, a letter of 7 August 2014 from a Mr H.W. of the Tilburg Evangelical Baptist Church, confirming the sincerity of the applicants’ conversion, was insufficient to lead to a different finding as it had still been incumbent on the applicants to make a plausible case for the genuineness of their conversion. The Deputy Minister held in that connection that the first applicant had been unable to name the church where she had intended to be, and had later been, baptised; she had only known the first name of the minister at that church, and had stated that she had only had one conversation prior to her scheduled baptism. That contradicted Mr H.W.’s letter, which referred to discussions about baptism prior to the actual ceremony. The Deputy Minister held that neither applicant had demonstrated a deep-rooted, inner conviction of being a Christian and therefore a sincere conversion had not taken place. 12. The applicants lodged an appeal against the Deputy Minister’s rejection of their application with the Regional Court (rechtbank) of The Hague. They argued, inter alia, that their statements could not have led the Deputy Minister to conclude that because there had not been a lengthy process leading up to their conversion then that conversion was improbable. The applicants submitted a joint letter from Mr K.J.D. and Mr A.P. of 11 January 2015 from the Appingedam Evangelical Baptist Church, and a separate letter of 19 February 2015 from Mr A.P. The first letter confirmed that the applicants had attended Bible studies and weekly church services and that they were sincere in their beliefs. The second letter stated that the applicants demonstrated that they had gone through an internal process of conversion. 13. Following a hearing held on 29 July 2015 in the presence of the applicants and their counsel, the Regional Court of The Hague on 25 August 2015 dismissed their appeal. As to the assessment of an asylum claim based on religious grounds, the court held: “... the Deputy Minister applies a fixed policy in the assessment of religious grounds put forward by an alien in an asylum application. That policy involves the Deputy Minister putting questions to an alien which – in so far [as these] are applicable in a particular situation – can generally be divided into questions about the motivation for and the process of conversion, including the meaning and practical performing of baptism and a baptism ceremony, and about the personal meaning of the conversion or of the religion for an alien. Furthermore, those questions concern the general, basic knowledge about the religion’s doctrine and practices. Finally, the Deputy Minister expects that an alien who submits that attendance at church is part of his religion, is able to answer questions about that, for example, where the church he attends is located, what time the service or mass takes place, and what happens during the service or mass. Similar questions are put by the Deputy Minister to an alien about other ways in which he exercises his professed religion, such as evangelisation activities. ... the Deputy Minister rightly takes as a point of departure the fact that conversion by an alien who is from a country where conversion to another religion than the predominant one in that country is socially unacceptable should be based on a deliberate and conscious decision, which an alien should be able to explain.” 14. The Regional Court proceeded to uphold the Deputy Minister’s view that the applicants had failed to demonstrate that their decision to convert to Christianity and the process of conversion had been deliberate and conscious. The Regional Court referred in that regard to, inter alia, the alleged conversion of the first applicant which, she stated, had occurred at her very first house church meeting after saying a prayer; the relatively short time in which trust had been built up between the applicants and the first applicant’s colleague; the absence of measures to prevent the discovery of the house church; the contradictory statements about where the applicants kept their Bible; and the applicants’ failure to provide information about how the first applicant’s colleague had been able to obtain a copy of the Bible and to provide details about E.’s telephone call. As regards the applicants’ argument that even if it was assumed that they had not converted in Iran then they had done so in the Netherlands, the Regional Court agreed with the Deputy Minister that it was relatively easy to join a church, study the Bible and get baptised, but that such circumstances could not be decisive. A certain amount of knowledge of the Christian religion could not, in and of itself, lead to the conclusion that a conversion had been sincere. Although the letters from H.W., K.J.D. and A.P. might be capable of corroborating a conversion, it was nevertheless incumbent on the applicants themselves to provide convincing statements about their alleged conversion and the process leading up to it. The Regional Court noted that the applicants had not been able to state the names of the churches they had attended in the Netherlands and had known only the first names of the ministers at those churches. The Regional Court concluded that the applicants had failed to make a plausible case that they feared persecution or inhuman treatment in Iran. 15. On 29 September 2015 a further appeal lodged by the applicants was dismissed by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 16. An application to the Court was lodged on 24 December 2015. On 7 January 2016 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 deport the applicants to Iran for the duration of the proceedings before it (Rule 39 of the Rules of Court). 17. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000 (Vreemdelingenwet 2000). Further rules are laid down in the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). 18. Article 3.37b of the Regulation on Aliens 2000 provides as follows: “1. A well-founded fear of persecution within the meaning of the Refugee Convention or a real risk of serious harm can be based on events which have taken place since the alien left the country of origin. 2. A well-founded fear of persecution within the meaning of the Refugee Convention or a real risk of serious harm can be based on activities which have been engaged in by the alien since he left the country of origin, in particular where it is established that the activities relied on constitute the expression and continuation of convictions or orientations held by the alien in the country of origin.” 19. Article C2/3.2 of the Aliens Act Implementation Guidelines 2000 reads, in so far as relevant: “The IND will grant the alien who complies with Article 3.37b of the Regulation on Aliens a temporary residence permit for the purpose of asylum. This alien will be designated as ‘refugié sur place’. Even if the activities which the alien has been engaged in after his departure from the country of origin do not follow on from the activities in which he had already been engaged in the country of origin prior to his departure, the IND can designate the alien as a ‘refugié sur place’. This may be the case when the alien complies with the following conditions: • the authorities in the country of origin are aware, or the alien has made a plausible case for believing that the authorities in the country of origin will become aware, of those activities; and • the activities entail a well-founded fear of persecution within the meaning of Article 1A of the Refugee Convention.” 20. The section entitled “Refugees ‘sur place’” in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees provides, in so far as relevant, as follows: “94. The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. ... A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee ‘sur place’. 95. A person becomes a refugee ‘sur place’ due to circumstances arising in his country of origin during his absence. ... 96. A person may become a refugee ‘sur place’ as a result of his own actions, ... Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.”