Thus, it argued that the Pacheco Tineo family had abused the mechanism of asylum and argued
that, under refugee law, it was permissible to make a summary decision on requests that were
manifestly unfounded.
170.
It is not for the Court to consider whether the Pacheco Tineo family was, indeed, at risk
of the violation of the rights to life and personal liberty in the Peruvian State owing to their race,
nationality, religion, social situation or political opinions, in the terms of article 1.A of the 1951
Convention. This assessment corresponded to CONARE and there is no record that this organ
made it, or that it provided the grounds for its decision.
171. In any case, it must be recalled that the determination of a person’s refugee status by
the competent authorities is a two-stage procedure: verification of the facts of the case and
application of the definitions of the 1951 Convention and the 1967 Protocol to the proven facts.
Once all the accessible probative elements have been obtained and verified, and the entity
making the assessment is convinced of the overall credibility of the applicant, the competent
authority will take the decision on whether or not to recognize this status to the applicant, which
must be duly and explicitly reasoned (supra para. 159). Nevertheless, for the purposes of the
principle of non refoulement, the evidence of danger that has been gathered should necessarily
be taken into account in relation to the migratory decision adopted subsequently concerning the
State to which that person should be sent.
172. However, States may establish “accelerated procedures”233 to decide requests that are
“manifestly unfounded and abusive,”234 regarding which there is no need for international
protection. Nevertheless, given the serious consequences for the applicant that an erroneous
decision may have, even in such procedures the minimum guarantees of a hearing, and
determination of the unfounded or abusive nature of the request by the competent authority,
and the possibility of a review of the negative decision should be respected before expulsion. 235
In the instant case, CONARE did not take its decision because the request was “manifestly
unfounded,” and did not record, as appropriate, the reasons why it had reached its conclusions,
so that the State’s defense is unsubstantiated, because, when taking its decision, CONARE did
not make the above-mentioned determination.
173. Thus, irrespective of whether the request for asylum had been used by the Pacheco Tineo
family as “a defense mechanism,” or even if the stated objective was to pass through Bolivia to
reach Chile without risking an arrest at the border immigration post with this country or that of
Peru, the relevant point is that the CONARE authorities did not accord the family the opportunity
to state the reasons for their irregular entry into Bolivia; the reasons why they had signed a
statement on “voluntary repatriation” in 1998; their reasons for again requesting asylum and,
consequently, whether the same reasons existed or new facts that endangered their life or
circumstances that other countries take precautions; in addition, they are free to take the necessary measure to
safeguard the human rights of their people, because the general interest should prevail over the special interest. These
actions have been taken into account by the European countries and the United States of America among others” (folio
250).
233
Cf. United Nations High Commissioner for Refugees. Asylum Processes (Fair and efficient asylum procedures).
Global consultations on international protection, 31 May 2001, para. 30.
234
Defined as “those which are clearly fraudulent or not related to the criteria for the granting of refugee status
laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying
the granting of asylum” Executive Committee of the United Nations High Commissioner for Refugees, The problem of
manifestly unfounded or abusive applications for refugee status or asylum, No. 30 (XXXIV) (1983) para. d.
235
According to UNHCR: (a) the applicant should be given a complete personal interview by a fully qualified official
and, whenever possible, by an official of the authority competent to determine refugee status; (b) the manifestly
unfounded or abusive character of an application should be established by the authority normally competent to
determine refugee status, and (c) the possibility of having a negative decision reviewed, even by a more simplified
procedure, before rejection at the frontier or forcible removal from the territory. Executive Committee of the United
Nations High Commissioner for Refugees, The problem of manifestly unfounded or abusive applications for refugee
status or asylum, No. 30 (XXXIV) (1983) para. e.
57
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