An Afghani national applied first for international protection in Greece and, claimed to have been forced to give his fingerprints and applied for international protection in Luxembourg without waiting the Greek authorities response. The applicant, before arriving in Luxembourg, has passed Italy and France without expressing the willingness to apply for international protection.

The applicant expressed his fear to return to Afghanistan following the Taliban seized power in 2021, since he has no religion, he was the owner of a grocery store selling alcohol in hiding and stated to have been threatened to be killed.

The Ministry of Immigration and Asylum found the application manifestly unfounded, due to lack of plausibility and contradictory statements. The applicant failed in substantiating his statements and presented an application in Luxembourg under a different identity, without seeking any protection in any of the country which he passed during his travel to Luxemburg. The Ministry also concluded that the applicant cannot have a well-founded fear of persecution when the fears are manifestly hypothetical.

The applicant appealed against the negative decision on his application for international protection, adding that he was illiterate and unable to fill the form and that due to his Hazara ethnicity, his apostasy and political views he would face inhuman and degrading treatment in his country of origin. The applicant referred to an UNHCR press article regarding the Hazara persecutions by Taliban and the application of Article 2 of Geneva Convention 1951 in the present case.

The Administrative Tribunal dismissed the appeal as unfounded, considering that according to Law of 18 December 2015, the applicant is not fulfilling the conditions to be granted refugee status or any form of protection. The tribunal mentioned that  since the perpetrators of the acts referred by the applicant are private persons and the fear of his return to his country of origin remains purely hypothetical, thus not well-founded. The tribunal referred to the  report EUAA Country Guidance Afghanistan of April 2022 and found that in the current situation the Hazara ethnic group cannot be considered victim of systemic persecution or genocide in Afghanistan. By referring to the CJEU judgment CF and DN (Afghanistan) v Bundesrepublik Deutschland, C-901/19, ECLI:EU:C:2021:472, 10 June 2021, the Administrative Tribunal clarified that the individual assessment of an application for subsidiary protection must consider the level of violence perpetrated and include an assessment of the real risk of serious harm.