292 / 536
278
MONIKA FOREJTOVÁ
CYIL 7 ȍ2016Ȏ
the asylum claim the determining authority should take into account all relevant
indicators of a risk of
refoulement.
The burden of proof must shift from the applicant
to the determining authority if the applicant adduced evidence capable of proving
that there are substantial grounds for believing that there is a risk of
refoulement
. In
particular, the burden of proof should shift if:
a) the applicant made a plausible case that he was persecuted or subjected to
serious harm in the past;
b) the applicant substantiated that there would be a risk of
refoulement
in submitting
credible statements and/or documents;
c) country of origin information reports show that serious human rights violations
occur in the applicant’s country of origin; or
d) the applicant made a plausible case that he belongs to a group which is at risk.
The applicant should not be expected to prove negative facts. The duty to produce
evidence should be shared between the applicant and the determining authority.
Article 4(1) of the Qualification Directive requires Member States to cooperate actively
with the applicant so that all the elements needed to substantiate the application may
be assembled, if the elements provided by an applicant are not complete, up to date
or relevant. The determining authority should direct that a medical expert report be
written if the applicant makes out a
prima facie
case as to the origin of the scars on
his body. The determining authority should gather evidence which is accessible to it,
but not to the applicant.
35
Judicial Review
The national court or tribunal which decides on the appeal against the negative
asylum decision should review both points of law and points of fact.This court or
tribunal should assess the claim of a risk of
refoulement
on its merits. It should carefully
examine the facts and evidence underlying the asylum claim. A reasonableness test in
which wide discretion is afforded to determining authority’s fact-finding, including
the assessment of the applicant’s credibility, is not allowed. The national court should
at one stage of the asylum procedure, before the expulsion of the applicant, review the
asylum decision on the basis of all relevant available facts and evidence. This includes
all relevant evidence which is submitted in a later stage of the asylum procedure
(after the first administrative decision on the asylum application). Relevant facts or
evidence cannot be excluded from the assessment by the national court on the sole
ground that they should have been submitted earlier in the procedure.
36
35
RENEMAN, Marcelle.
EU asylum procedures and the right to an effective remedy
. Portland, Oregon:
Hart Publishing, 2014. Modern studies in European law ISBN 1849465452.
36
RENEMAN, Marcelle.
EU asylum procedures and the right to an effective remedy
. Portland, Oregon:
Hart Publishing, 2014. Modern studies in European law ISBN 1849465452.