“1951 Convention grounds”). 71 While the burden of establishing the veracity of his or
her allegations and the accuracy of the facts relevant to an asylum claim (the “burden of
proof”) lies, in principle, on the applicant, the duty to ascertain the pertinent facts is
shared between the applicant and the decision-making authority. 72 It is the role of the
decision-maker to determine whether, based on the facts, the applicant meets the
refugee definition as set out in Article 1 of the 1951 Convention. In this analysis,
diplomatic assurances go to the question of the well-foundedness of the fear. 73
50.
The analysis in cases involving diplomatic assurances should start with a careful
examination of the nature of the harm facing the applicant in the event of his or her
return to the country of origin or former habitual residence. It is important to recall that
the notion of “persecution” in international refugee law encompasses, but is not limited
to, serious human rights violations such as arbitrary deprivation of life or liberty, torture
or other cruel, inhuman or degrading treatment or punishment. Persecution may
manifest itself in other ways, including, for example, discriminatory measures which,
either of themselves or cumulatively, result in consequences of a substantially
prejudicial nature. Restrictions of a person’s social and economic rights may also
amount to persecution if they result in depriving those affected of their ability provide
for their livelihood. 74
51.
Diplomatic assurances would meet the suitability criterion only if they could
effectively eliminate all reasonably possible manifestations of persecution in the
individual case. The decision-maker would need to consider whether a person who may
be subjected to a particular form of persecution linked to a 1951 Convention ground
may be exposed to other kinds of serious harm for those reasons, even if the assurances
would effectively eliminate a specific threat. For example, an undertaking given by the
country of origin to the effect that an applicant would not be subjected to torture if he or
she were to be extradited would not necessarily eliminate a risk of persecution in the
form of excessive or disproportionate punishment, or serious discrimination which the
individual concerned is likely to face independently of the criminal proceedings against
him or her.
52.
Another question which is relevant both to the suitability of diplomatic
assurances and their reliability is whether the risk of persecution emanates from State
agents or non-State actors, and whether or not the authority which has provided the
assurances has effective control over their actions.
71
As noted above at paragraph 8, eligibility for international refugee protection also requires
that the applicant does not come within the scope of an exclusion provision of the 1951
Convention.
72
See UNHCR, Handbook, above footnote 55, at paragraphs 195–199; see also UNHCR, Note
on Burden and Standard of Proof, above at footnote 57, at paragraph 6. Depending on the
circumstances, the decision-maker may be required to use all the means at his or her disposal to
produce the necessary evidence in support of the application. However, as noted above at
paragraph 39, this should not include seeking diplomatic assurances with regard to an asylumseeker from the authorities of the country of origin or former habitual residence.
73
An asylum-seeker’s fear is well-founded if there is a “reasonable possibility” that he or she
would be subjected to the treatment feared, or any other harm amounting to persecution, if
returned to the country of origin or former habitual residence.See UNHCR, Note on Burden and
Standard of Proof, 16 December 1998, at paragraph 17.
74
See UNHCR, Handbook, above footnote 55, at paragraphs 51–64.
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