NDABARISHYE RUGIRA v. THE NETHERLANDS
Inadmissible
Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Justin Ndabarishye Rugira, stated that he is a national of the Democratic Republic of Congo (DRC) and that he was born on 12 October 1993 in the DRC. At the time of the introduction of the application, he was staying in Rotterdam. He was represented before the Court by Mr W.H.M. Ummels, a lawyer practising in Rotterdam. 2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 19 June 2012, the applicant applied for asylum in the Netherlands, submitting that he was a member of the Banyamulenge (Tutsi) community and that he hailed from South-Kivu in the eastern part of the DRC where he had had problems with the DRC governmental armed forces. He further stated that he had travelled by car form the DRC to Burundi on 26 May 2012, from where he had travelled by air, with a stopover at an unknown airport, to the Netherlands where he had arrived on 27 May 2012 at Schiphol airport. He had never applied for or held a travel document or visa. The person who had accompanied him on his journey had shown documents on the applicant’s behalf at control points. The only identity document he submitted was a DRC voter’s pass issued on 6 April 2011 by the Lulenge electoral commission. The applicant stated that he had never held any other identity documents. 5. On 27 June 2012 the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; “the Minister”) rejected the applicant’s asylum request. The Minister considered that the applicant’s failure to substantiate in a sufficient manner his stated identity, nationality and travel itinerary as well as his failure to give a detailed, coherent and verifiable account of his journey to the Netherlands detracted from the credibility of his asylum account which, furthermore, lacked positive persuasiveness. Referring to the official report (ambtsbericht) on the DRC, drawn up by the Netherlands Minister of Foreign Affairs in June 2012, the Minister further found that the overall situation in the DRC was not such as to warrant accepting the applicant’s asylum request. 6. On 20 July 2012, the Regional Court (rechtbank) of The Hague sitting in Zwolle dismissed the applicant’s appeal. It considered that, although the situation in South-Kivu fell within the scope of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”), a safe relocation alternative existed in Kinshasa. Although possible, the applicant did not file a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). 7. On 9 August 2012 the applicant lodged a fresh asylum request, which was rejected by the Minister on 7 September 2012. Referring to the Netherlands official report on the DRC of June 2012, the Minister held that the articles and reports relied on by the applicant did not lead to a different conclusion as to the lack of credibility of his asylum account and the possibility for him to settle elsewhere in the DRC. 8. On 10 January 2013, the Regional Court of The Hague sitting in Middelburg dismissed the applicant’s appeal. It held that, although the overall situation in the DRC had worsened since the decision of 27 June 2012 on the applicant’s first asylum request, it could not be said that there was systematic discrimination of Banyamulenge in the DRC and the applicant still had an alternative relocation possibility outside the Kivu area. The applicant filed a further appeal against this decision as well as an accompanying request for a provisional measure, namely a stay of removal pending the proceedings on this further appeal. 9. On 22 January 2013, according to the applicant on the basis of the DRC voter’s pass submitted by him in support of his asylum request, the DRC mission in Belgium provided the Netherlands authorities with an “attestation tenant lieu de passeport” for the purposes of the applicant’s removal to the DRC. This document was valid from 22 January 2013 to 21 January 2014. On an unspecified date, the applicant was informed that his removal to Kinshasa (DRC) had been scheduled for 14 February 2013. 10. On 8 February 2013, the President of the Administrative Jurisdiction Division granted the applicant’s request for a provisional measure. Consequently, the applicant’s scheduled removal was cancelled. 11. On 28 February 2013 the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary reasoning. It found that the further appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling. 12. On 15 March 2013 the applicant requested the Court to indicate to the Government, by way of an interim measure pursuant to Rule 39 of the Rules of Court, that he should not be removed to Kinshasa (DRC). 13. On 11 April 2013 the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to the DRC for the duration of the proceedings before the Court. The President further decided to bring the application to the notice of the respondent Government in accordance with Rule 54 § 2 (b) of the Court’s Rules of Procedure and to submit written observations on the admissibility and merits. 14. On 23 May 2013, the respondent Government informed the Court that, according to information received from the Belgian authorities, the applicant had entered the Schengen area in 2012, using a tourist visa issued by the Belgian authorities and a Rwandan passport. Pending verification of this new information, the Government sought an extension of the time-limit fixed for submission of their written observations. This request was granted by the President. 15. On 17 July 2013, the respondent Government informed the Court that, given the doubts that had arisen as regard the applicant’s origins, a language analysis would be carried out. 16. On 15 August 2013, a report was drawn up on the language analysis test carried out by the Office for Country Information and Language Analysis (Bureau Land en Taal), a specialised unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; “IND”) of the Ministry for Security and Justice (Ministerie van Veiligheid en Justitie). The conclusion of this language analysis was that the applicant was unequivocally identified as not originating from the DRC (“eenduidig niet herleidbaar to DR Congo”) but it was considered likely that he originated from the linguistic community in Rwanda (“waarschijnlijk herleidbaar tot de spraakgemeenschap binnen Rwanda”). 17. According to a report issued by the Documents Bureau (Bureau Documenten) of the Immigration and Naturalisation Service on 4 September 2013, the DRC voter’s pass submitted by the applicant to the Netherlands authorities had possibly not been drawn up and issued by a competent authority (mogelijk niet bevoegd opgemaakt en afgegeven) but the document itself was “with virtual certainty” (met aan zekerheid grenzende waarschijnlijkheid) authentic. 18. On 1 November 2013, the respondent Government submitted their observations to which the applicant replied on 29 January 2014. 19. On 18 February 2014, the respondent Government submitted a print-out of a website-page of the Belgian Federal Foreign Affairs Service (Federale Overheidsdienst Buitenlandse Zaken) containing the details – including a digital passport photograph and particulars of the petitioner – of an accepted application for a tourist visa filed with the Belgian authorities on 17 April 2012 by Mr Justin Ndabarishye, a Rwandan national born in the DRC on 12 October 1990. The respondent Government also submitted a copy of the applicant’s asylum application filed in the Netherlands, including a passport photograph of the applicant taken in that context. 20. The applicant’s response to these materials was submitted on 28 March 2014. 21. The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012). 22. At the material time, the respondent Government’s policy on asylum-seekers from particular countries was devised by the Minister for Immigration, Integration and Asylum Policy and his successor, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie), on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum-seekers. 23. On 10 July 2013, the Deputy Minister for Security and Justice adopted a moratorium on decisions on asylum applications and expulsions (besluit- en vertrekmoratorium) for asylum-seekers of Tutsi origin hailing from the east of the DRC, including the provinces North-Kivu and South-Kivu. 24. The moratorium was lifted by the Deputy Minister on 3 February 2014. This policy decision, as published in the Official Gazette (Staatscourant) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report on the DRC released by the Minister of Foreign Affairs on 27 November 2013. It was found in this report that there was no systemic, structural and organised discrimination of Tutsis in the DRC, that there was no structural violence in the DRC against the Tutsi population or other Congolese with a Tutsi background and that Tutsi groups could obtain protection from the DRC authorities. Although the general situation in the provinces of North-Kivu, South-Kivu, Haut-Uele and Bas-Uele in the eastern part of the DRC continued to be considered as falling within the scope of Article 15(c) of the Qualification Directive, an internal protection alternative was found to be available in other parts of the DRC, including Kinshasa, for asylum-seekers hailing from those provinces who did not qualify for refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees.