Supreme Administrative Court Decision of 8 March 2004

1. Subject matter

Application for a leave to appeal on asylum, residence permit and removal from the country

2. Demands in the Supreme Administrative Court

X has applied for a leave to appeal on the decision of Helsinki Administrative Court. He has demanded that he be granted a leave to appeal concerning asylum and residence permit on grounds of need of protection. He has demanded that the decision of Helsinki Administrative Court on the above mentioned matters will be revoked and that he be granted asylum or residence permit on grounds of need of protection. Further, he has demanded an oral hearing in the Supreme Administrative Court.

X has reiterated his previous statements and, in addition, presents in the Supreme Administrative Court the following. X is a 36-year old Nepalese, working in a good profession in his home country and a well accomplished athlete both nationally and internationally who has had no other reason to flee his home country than the fear of persecution. He has been forced to leave his work, position as a top runner and, above all, his family after his political opinion has come to the knowledge to Nepalese authorities.

Nepalese authorities are known to have an extremely harsh attitude on the Maoists and persons suspected to be Maoists. X has been tortured by the authorities of his home country and, at present, during the emergency law, he has a well-founded reason to assume he would be persecuted if he had to return to Nepal.

X has presented well founded reasons for his fear for his life and other fundamental human rights for reason of his political opinion. He resides outside his country of origin and, in the absence of protection of the authorities of Nepal, he satisfies the legal definition of refugee pursuant to Article 1 A (2) of the 1951 Geneva Convention. Therefore he must be granted asylum pursuant to Section 30 of the Aliens' Act or be considered to be in need of protection as meant in Section 31 of the Aliens' Act.

Human rights situation in Nepal is extremely poor. The country has been in emergency since November 2001, and the emergency was prolonged again in May 2002. Nepalese police, army and Maoists commit serious human rights violations. Parties of the conflict do not respect human rights or humanitarian law.

X's credibility is supported by the fact that his identity and position as an officer in the Nepalese police forces have been verified. His activities for the Maoist Party have also been verified. He has presented documents that have proven his imprisonment for his political activities and that he is wanted. He has presented his case with coherence and credibility within his capabilities and state of health. The documents he has presented have not been proven to be falsified.

Helsinki Administrative Court has heard X orally on 3 April 2002. The oral hearing was conducted in English against the request of the legal counsel. In the course of the hearing the interpreter proved to be incompetent. When his lacking skills in English became obvious X tried himself to explain his case to the Court in his poor Finnish and English.

Helsinki Administrative Court voted on X's case and there were more dissenting opinions than usually.

3. Decision of the Supreme Administrative Court

1. A leave to appeal is granted and the appeal is examined.

The decisions of the [Helsinki] Administrative Court and the Directorate of Immigration are revoked concerning asylum and a residence permit on grounds of need of protection. The case is returned to the Directorate of Immigration for a new procedure.

2. Demand for an oral hearing in the Supreme Administrative Court is rejected.

4. Statement of the reasons by the Court

1. Pursuant to Section 30 Subsection 1 of the Aliens' Act an alien shall be granted asylum and issued a residence permit if he resides outside the country of his nationality or former habitual residence owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

Subsection 2 of the mentioned Section 30 includes provisions on the reasons for which asylum can not be granted.

Pursuant to Section 31 of the Aliens' Act an alien can be issued a residence permit on grounds of need of protection if he is threatened in his country of nationality or habitual residence by death penalty, torture or other inhuman or degrading treatment or punishment or if he cannot return there due to an armed conflict or environmental catastrophe.

According to the Bill for the Amending the Aliens' Act (HE 50/1998 vp) the question on the fear of persecution being well-founded should be decided in casu. In unclear situations the case should be decided in favour of the applicant provided that all available information has been acquired and verified and that the applicant can generally be considered credible. The statements of the applicants must be logical and reliable and they must not contradict generally known facts. According to the Bill a residence permit on grounds of need of protection could be issued in situations where the applicant needs international protection due to the situation prevailing in his home country or due to human rights violations he can be subjected to there.

The Parliament has in its response to the Bill required that the legal deliberation based on Section 30 shall be used in a manner that a claim for asylum shall be processed according to the principles adopted by the UNHCR:

UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status defines the general procedures and principles that must be followed in the refugee status determination procedure. According to the Handbook the phrase "well-founded fear" includes both a subjective and an objective element. It is not only the frame of mind of the person concerned that determines his refugee status, but this frame of mind must be supported by an objective situation. There is no universally accepted definition of "persecution". A threat to life or freedom on account of race, religion, nationality, membership of a particular social group or political opinion is always persecution. Other serious violations of human rights- for the same reasons- would also constitute persecution. Persecution is normally related to action by the authorities of a country. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution, if they are knowingly tolerated by th eauthorities, or if the authorities refuse, or prove unable, to offer effective protection.

Even if the applicant has tried to prove his account truthful, it may be possible that all his statements may not be susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

According to the documents available X has in his asylum interview, appeal and briefs told about the violations of human rights subjected to him and the reasons for them. X has in his asylum application on 30 July 1998 stated that he is a Nepalese police officer who has tried to help his Maoist friends and members of the party. When the government authorities discovered that he belongs to the supporters of the Maoist Party, they started to threaten him. X was forced to leave his work, position as a top sprinter and his family after his political opinion came to the knowledge of Nepalese authorities.

In the asylum interview X has also told about the causes the Maoist Party supports and mentioned the name of the party leader, Mr. Babu Ram Bhattarai. He has, further, told that he does not want to return to Nepal before the situation in the country has calmed down because he fears he will be imprisoned and shot dead. X has told that he has been given two warnings in which he was accused of helping extreme Maoists. He has been heard in May 1998 in Butwali police station on his activities with the Maoists and hit on his shoulder with a bamboo stick and threatened with electric shocks. X has told that he is wanted in Nepal and, according to his parents, search warrants on him had been spread in his home village.

X has been treated for several years by a psychiatrist in the Centre for Torture Survivors in Finland.

Based on the facts mentioned above the Supreme Administrative Court holds that X's account cannot to a reasonable degree give rise to an assumption that he would be in risk of persecution in Nepal for reasons meant in Section 30 of the Aliens' Act. Therefore he cannot be granted asylum. However, taken into consideration all relevant facts presented in the case together with the unpredictable human rights situation in Nepal, it can be considered possible that X is, owing to his activities in Nepal, threatened by inhuman or degrading treatment in Nepal. Therefore he is in need of international protection pursuant to Section 31 of the Aliens' Act.