CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 décembre 2022

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MALTA (Application no. 37241/21)     JUDGMENT   Art 13 (+ Art 3) • Art 3 (Expulsion) • Refusal of applicant’s asylum requests without an assessment of his claim as to the risk faced on his return to Bangladesh given his reporting as a journalist of electoral irregularities in the 2018 general elections • Failings in domestic asylum procedure • Lack of access to an effective remedy • Removal without a fresh assessment of applicant’s claim would entail a breach   STRASBOURG 20 December 2022     FINAL   22/05/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of S.H. v. Malta, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen,   Jovan Ilievski,   Egidijus Kūris,   Pauliine Koskelo,   Lorraine Schembri Orland,   Diana Sârcu,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   37241/21) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bangladeshi national, Mr S.H. (“the applicant”), on 28 July 2021; the decision to give notice to the Maltese Government (“the Government”) of the application; the decision not to have the applicant’s name disclosed; the decision to indicate an interim measure to the respondent Government under Rule   39 of the Rules of Court; the parties’ observations; Having deliberated in private on 29 November 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the procedure leading to the refusal of the applicant’s asylum requests and the alleged violation of Article 13 in conjunction with Article 3 of the Convention and Article 3 taken alone. The applicant claimed to be a journalist in Bangladesh, who had been the subject of persecution after he observed electoral irregularities in the 2018 elections. THE FACTS 2.     The applicant was born in 1999 and lives in Msida. He was represented by Dr N. Falzon, a lawyer practising in Ħamrun. 3.     The Government were represented by their Agents, Dr C.   Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4.     The facts of the case as appear from the documents submitted and the relevant submissions may be summarised as follows. BACKGROUND TO THE CASE 5.     The applicant comes from the Kishorganji District in the Dhaka Division of Bangladesh. He submitted that he was working for the local Kishoreganj branch of Vairab KTV Bangla, a popular news TV channel in Bangladesh and that he received training from the Bangladesh Press Institute and from the Bangladesh Media Institute. He explained that during his career he reported on several news items and interviewed political leaders such as Nazmul Hassan Papon, a member of the Bangladesh Awami League (AL - the governing party). He submitted that he was well known in the region as a reporter that received several regional prizes for the quality of his work. As such, his assignment to the 30 December 2018 general election was the highlight of his career and his most important to date. He considered that during these elections he had made the bold choice to report against the corruption and fraud committed by the AL. This had brought the anger of the AL upon him which attacked him while he was taking pictures of the events. After their victory, the AL vandalized his house and supporters of the AL threatened to kill him. No action was taken by the local authorities in fear of the ruling party. In these circumstances the applicant had no other choice than to leave the country on 2 February 2019. 6.     The applicant arrived in Malta by boat on 17 September 2019 and was immediately placed in detention. THE ASYLUM PROCESSES The first asylum proceedings 7.     On 14 November 2019 the applicant lodged an application for international protection, without legal assistance. 8 .     In substantiation of his asylum claim, he submitted forty pictures and documents, including first-hand accounts of the events that led him to flee his country of origin. The material included the applicant’s press cards, photos of the applicant receiving several journalistic prizes and awards, and newspaper articles. His file included, in particular, copies of: - A photo of the applicant interviewing a candidate; - A photo of the applicant receiving a cultural award; - A photo of the applicant receiving the best annual journalism certificate of KTV Bangla, Pride of Bhairab; - A discharge note from a hospital stating that the applicant had been admitted on 30 December 2018 for burns and was being discharged on 3   January 2019; - A news item, dated March 2018, about the applicant, a journalist, saving a student; - An article showing a picture of the applicant and relating the attack on him after the elections; - An article again showing the applicant and relating the attack on him as a journalist; - A certificate of training from the Bangladeshi Press Institute; - The applicant’s Bangladeshi identity card and passport. 9 .     In consideration of his application for international protection, the applicant was asked to submit to a personal interview, which took place on 28   May 2020. The applicant was not legally assisted but he was assisted by an interpreter throughout the interview. The case worker explained to the applicant the purpose of the interview and informed him that, since Bangladesh is a safe country, his asylum application will be assessed with the accelerated procedure. 10.     The claims which were explored in the interview were mainly two: first that the applicant had been a journalist in Bangladesh, and second, that the applicant, as a journalist, took photos of the irregularities committed by the AL during the election period and for this reason, he had been targeted by them. 11.     According to the applicant, in the period between his arrival and his rejection, due to various administrative and logistical restrictions on access to detention by service-providers and due to increased limitations following the outbreak of the Covid-19 pandemic, detained asylum-seekers were unable to access any form of support relating to their asylum claims, including legal services provided by private or NGO lawyers or legal aid. The first time he could finally reach out to a lawyer was only, late in the process, in October 2020. The first-instance decision 12 .     On 10 December 2020, following an assessment of the credibility of the narrative of the applicant during the interview, the Refugee Commissioner, later known as the International Protection Agency (hereinafter ‘the Agency’), rejected his claim as manifestly unfounded. The decision was based on Article 2 of Chapter 420 of the Laws of Malta, the International Protection Act) (see paragraph 30 below), namely that “the applicant had made clearly inconsistent and contradictory, clearly false or obviously improbable representations which contradict sufficiently verified country of origin information, thus making his claim clearly unconvincing in relation to whether he qualified as a beneficiary of international protection”; and the applicant was from a safe country of origin. 13 .     According to the assessment report, attached to the decision, it was noted that the authenticity of the documents submitted by the applicant could not be established since they were only copies of the original documents. In particular, it was considered that his claim that he was a journalist was not sufficiently credible, as the applicant did not provide sufficiently specific and detailed replies to the questions posed, as would be expected of a journalist involved in political reporting. His explanation of his articles did not reach the expected level of detail and many of them did not cover political issues. In regard to the reporting on the Bangladeshi national elections of 2018 (in respect of which he had claimed that he was beaten up and threats ensued, after he had seen members of the winning party casting ballots on behalf of others) it was considered that the applicant did not provide a sufficient level of detail regarding the irregularities and the issues which affected the election, as reported by the country of origin information (COI) consulted. He had recounted only two irregularities while there had been many more. He was unable to provide information about the electoral code of conduct, describing instead the political system. When asked about the constraints on journalists, he had vaguely referred to “Article 56” without specifying the exact law, and he provided insufficient detail about its content. It had been considered that the applicant should have known more about a law that led to the imprisonment of several journalists. His replies about the Digital Security Act (DSA) adopted in 2018, affecting journalists, were also not sufficiently elaborate, as would be expected. The applicant had also been vague in his answer relating to internet surveillance by the State aimed at restricting freedom of speech during the election. It was thus considered that he lacked the expected level of knowledge and details in the light of the effects of these laws on journalists. 14 .     Since his claim that he was a journalist had not been considered credible, the alleged targeting by AL was also not credible as there was then no motive. Moreover, it was considered that the recapitulation of the events of 29 and 30 December (election day) had been vague and inconsistent. It would be expected of a journalist to give a detailed account of the irregularities witnessed. It was also considered that his explanation about the death threats to his family and friends, and the attack on the former had not been sufficiently detailed. He had not given the aggressors identity but merely indicated that AL members had been involved (based on an assumption, since AL members were on that day celebrating victory), as well as its president and secretary, and that threats had been made on Facebook as well as in a direct manner. As to their content, they had been limited to threats of his disappearance or killing, such as “if your son stays in the country, your son will be disappeared and killed, you even cannot see his dead body” and “your son will be killed liked this” (in reference to Sagar-Runi Murder case, a journalist killed in 2012), with no further detail. Further, while on the day of the alleged beating he had been taken to hospital (as shown by a medical certificate), he had failed to file an official police report, claiming that the police had told him that they depended on the Government. Yet he failed to give the police names, the circumstances of this encounter and how the police were connected to AL. 15 .     Based on the above, it was considered that there was no reasonable degree or likelihood that the applicant would be subjected to serious harm on his return. Bangladesh being a safe country of origin there was no need for further assessment. The second-instance decision 16.     On the same day (10 December 2020) the first decision was automatically submitted to the International Protection Appeals Tribunal (hereinafter ‘the Tribunal’) for review in terms of the accelerated procedure under Article 23 of the International Protection Act (see paragraph 30 below). 17.     The Tribunal confirmed the decision the following day. While the applicant had not been notified of the decision, his, by then, appointed lawyer was informed of the rejection by means of an email of 14 January 2021. 18 .     In the meantime, the Principal Immigration Officer (PIO) had issued a return decision and a removal order against the applicant, who was again detained on 16 December 2020 (after he had been released three days earlier, his detention having exceeded the nine months period provided in law). 19 .     The Tribunal’s final decision of 11 December 2020 was only issued on 5 May 2021, however, the applicant refused to sign it as he did not understand its content. A request to call his lawyer remained unsuccessful. Thus, the decision was only notified to the applicant on 21 June 2021 during proceedings before the Immigration Appeals Board (hereinafter ‘the Board’) (see paragraph 27 below) and a full (undated) decision was only communicated to him on 29 July 2021 after several reminders by the lawyer. The second asylum proceedings 20.     On 23 February 2021 the applicant submitted a further application for international protection in line with Article 7A of the International Protection Act. On 23 March 2021, the applicant was given the status of an asylum seeker and the Agency informed the applicant’s legal counsel that it would proceed with a preliminary examination on the subsequent application, in order to assess whether new elements or findings had arisen or had been present which would significantly add to the likelihood of the applicant qualifying for international protection, in line with Article 7A of the International Protection Act (see paragraph 30 below). 21.     The documentary evidence presented in support of the subsequent application consisted of two videos in which he was seen acting as a journalist, covering the 2018 elections and corruption in Bangladesh, and eight online newspaper articles. 22 .     Upon a preliminary examination on the admissibility of the subsequent application, by means of an undated decision, the Agency declared it inadmissible in accordance with Article 24(1) (d) of the International Protection Act (see paragraph 30 below). According to the Agency’s Chief Executive Officer’s report, the latter accepted that the videos which had been submitted showed the applicant working as a journalist reporting on the election, but he had been unable to substantiate his statements that he had been targeted and beaten by AL for reporting irregularities. It largely referred to the first assessment made by the Agency (which had found that the applicant had not proved that he was a journalist) and noted that even assuming that he was a journalist, he had not proved that he had been attacked. Accepting that the applicant had recently received this information and being satisfied that he had presented new elements and findings of which he could not have been aware of in his first application, it nonetheless considered that his claims had already been assessed in the first application, thus they could not be considered as new elements justifying a further examination. It thus concluded that no new elements or findings relating to the examination of whether the applicant qualified as a beneficiary of international protection had arisen or had been presented in accordance with Article 7A (4) and (5) of the International Protection Act. 23.     The decision was confirmed by the Tribunal on 5 May 2021 under the accelerated procedure. The third asylum proceedings 24.     On 3 September 2021, following the granting by the European Court of Human Rights (ECtHR) of the applicant’s request for an interim measure staying his removal (see paragraph 29 below), the applicant filed a further application for protection. On 6 September 2021, the Agency notified the applicant, once again, that it would proceed with a preliminary examination of the application and shortly after he was issued with an asylum seeker document. 25.     The application was declared inadmissible on 28 September 2021 as ‘no new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection had arisen or had been presented’. The Agency noted that the interim measure issued by the ECtHR was not related to the examination of whether the applicant qualified as a beneficiary of international protection under EU and Maltese law. Reference was made to the basis of the rejection of the previous requests. 26.     In terms of the accelerated procedure the decision was notified to the Tribunal. On 22 October 2021 the Tribunal rejected it as inadmissible, for the same reasons given by the Agency (referring however to a first instance decision of 19 October 2021 not 28 September 2021). The decision was notified to the applicant on 24 November 2021. OTHER PROCEEDINGS The challenge against the removal order 27 .     In the meantime, the applicant had filed an appeal against the return decision and removal order in front of the Immigration Appeals Board (hereinafter ‘the Board’). The appeal was rejected on 26 July 2021. The Board noting that it had no reason to doubt the findings of the Agency which was a separate entity in respect of whose decisions and findings the Board had no say. Furthermore, the applicant had not brought new evidence to substantiate his arguments concerning non-refoulement. 28.     Various challenges to the applicant’s prolonged detention were rejected on the basis that his removal was imminent. The request to the European Court of Human Rights 29 .     On 28 July 2021 the applicant instituted proceedings before the ECtHR, including a request for an interim measure to stay his removal. On 10   August 2021, the Court (the duty judge) decided that, in the absence of an adequate assessment, by the domestic authorities, of the applicant’s claim that he would risk ill-treatment if returned to Bangladesh based on his activity as a journalist, it was in the interests of the parties and the proper conduct of the proceedings before it to indicate to the Government of the Malta, under Rule   39 of the Rules of Court, that he should not be removed to Bangladesh. RELEVANT LEGAL FRAMEWORK DOMESTIC LAW The International Protection Act 30 .     In so far as relevant the International Protection Act, Chapter 420 of the Laws of Malta, reads as follows: Article 2 “"manifestly unfounded" application means an application in relation to which: [...] (b) the applicant is from a safe country of origin; or [...] (e) the applicant has made clearly inconsistent and contradictory, clearly false or obviously improbable representations which contradict sufficiently verified country ‑ of ‑ origin information, thus making his claim clearly unconvincing in relation to whether he qualifies as a beneficiary of international protection; [...] "person eligible for subsidiary protection" means a third country national who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his country of origin, would face a real risk of suffering serious harm, and is unable or, owing to such risk, unwilling to avail himself of the protection of that country, and has not been excluded from being eligible for such protection under article 17(1); "refugee" means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events is unable or, owing to such fear, is unwilling to return to it, but does not include a person excluded in terms of article 12: Provided that in the case where a person has more than one nationality, the term "country", mentioned above, shall refer to each country of which he is a national, and such a person shall not be considered as not having the protection of his country if, without any founded fear of persecution, he has not sought the protection of one of the countries of which such a person is a national: Provided further that: (a) acts of persecution within the meaning of Article 1Aof the Convention must be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the right from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as in paragraph   (a). For the purpose of paragraph (a), "acts of persecution" means: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory manner; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in article 12(2); (f) acts of a gender-specific or child-specific nature: Provided that refugee status on the grounds of fear of persecution shall only be granted if there is a connection between the reasons for persecution mentioned in regulation 18 of the Procedural Standards in Examining Applications for International Protection Regulations and the acts of persecution referred to in this definition; "safe country of origin" means a country of which the applicant, for the purpose of international protection:(a) is a national; or (b) being a stateless person, was formerly habitually resident in that country; and he has not submitted any serious grounds for considering the country not to be a safe country of origin in his particular circumstances; "subsequent application" means a further application for international protection made after a final decision has been taken on a previous application.” Article 7 “(1) The [International Protection Appeals] Tribunal shall have power to hear and determine appeals against a decision of the International Protection Agency including appeals from decisions for the transfer of a third country national from Malta to another Member State in accordance with the provisions of Council Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or stateless person. (1A) For the purpose of this article, an appeal on both facts and points of law shall lie against: (a) a decision taken on an application for international protection: (i) considering an application to be unfounded in relation to refugee status and, or subsidiary protection status; (ii) considering an application to be inadmissible pursuant to article 24; Provided that for the purpose of this provision, the review conducted by the Chairperson of the International Protection Appeals Tribunal shall be deemed to constitute an appeal. [...] (10) Notwithstanding the provisions of any other law, but without prejudice to article 46 of the Constitution of Malta and without prejudice to the provisions of article 4 of the European Convention Act the decision of the Tribunal shall be final and conclusive and may not be challenged and no appeal may lie therefrom, before any court of law, saving the provisions of article 7A. (11) Where the Tribunal finds in favour of the applicant the International Protection Agency shall issue a declaration accordingly.” Article 7A “(1) A person who has applied for international protection may make a subsequent application after a final decision to the International Protection Agency: Provided that such application shall only be considered on the presentation of new elements or findings, relating to the examination of whether the person making the subsequent application qualifies as a beneficiary of international protection, and of which the applicant could not have been aware or which he could not have submitted. (2) The person submitting a subsequent application shall: (a) indicate facts and provide evidence which justify this procedure; and (b) submit such new information within fifteen days from the day on which the person making the subsequent application obtained such information. (3) The examination may be conducted on the sole basis of written submissions and the person making the subsequent application is to be informed of the outcome of the examination and of his right for an appeal. (4) For the purpose of taking a decision on the admissibility of an application pursuant to article 24, a subsequent application shall be subject to a preliminary examination as to whether new elements or findings have arisen or have been presented since the lodging of the first application. (5) If the preliminary examination referred to in sub-article (4) concludes that new elements or findings have arisen or have been presented by the applicant which significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection, a further examination of the application shall be carried out: Provided that an application shall only be further examined if the applicant concerned was, through no fault of his own, incapable of concluding that new elements or findings have arisen. (6) When a subsequent application is not further examined pursuant to this article, it shall be considered inadmissible, in accordance with article 24(1)(d). [...]” Article 8 “(1) A person may apply to the International Protection Agency, in the prescribed form, and shall be granted refugee protection, where it is established that he faces a well-founded fear of persecution in his country of origin or habitual residence in terms of the Convention. (2) A well-founded fear of persecution may be based on events which have taken place after applicant has left his country of origin or activities engaged in by applicant since leaving the country of origin, except when based on circumstances which the applicant has created by his own decision since leaving the country of origin. (3) For the purpose of this article, a previous persecution or serious harm or a direct threat of such persecution or harm shall be considered as a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or previous harm will not be repeated. (4) Where the Chief Executive Officer decides that the applicant is eligible for refugee status, he shall make a declaration to this effect.” Article 23 “(1) A person seeking international protection in Malta in terms of article 8 shall be examined under accelerated procedures in accordance with this article when his application appears to be manifestly unfounded. (2) Where the International Protection Agency is of the opinion, at whichever stage, that the application is manifestly unfounded, the Chief Executive Officer shall examine the application within three working days and shall, where applicable, decide that the application is manifestly unfounded. (3) The decision shall immediately be referred to the Chairperson of the International Protection Appeals Tribunal who shall examine and review the decision of the International Protection Agency within three working days. (4) The decision of the Chairperson of the International Protection Appeals Tribunal on whether the application is manifestly unfounded shall be final and conclusive and, notwithstanding the provisions of any other law, no appeal or form of judicial review shall lie before the Tribunal or before any other court of law. (5) Where, following the procedures outlined in the previous provisions of this article, an application is rejected, the Chairperson of the International Protection Appeals Tribunal shall send a copy of the decision with the grounds therefor to the Minister and the International Protection Agency. (6) Any interview with the applicant under the foregoing provisions of this article shall, where necessary, be conducted in private and with the assistance of an interpreter. The applicant shall also be informed of his right to obtain the services of a legal adviser to assist him during accelerated proceedings and to consult the High Commissioner. (7) Where the application is considered not to be manifestly unfounded such application shall be examined under normal procedures as provided under this Act. [...]” Article 24 “(1) The application of any person in Malta seeking international protection and who falls under any one of the following conditions, shall be inadmissible if: [...] (c) a country which is not a Member State is considered as a safe third country for the applicant; (d) the applicant made a subsequent application, where no new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection have arisen or have been presented by the applicant in accordance with the provisions of sub-articles (4) and (5) of article 7A; (2) The provisions of article 23(2), (3), (4) and (5) shall apply mutatis mutandis to inadmissible applications. (3) The International Protection Agency shall allow applicants to present their views, with regard to the application, of the grounds referred to in this article before a decision on the admissibility of an application has been taken. A personal interview on the admissibility of the application shall also be conducted. (4) The Minister may by regulations amend the list of countries specified in the Schedule, provided that only countries which in his opinion are countries of safe origin may be listed in the said Schedule, so however that the Minister shall remove from the said Schedule any country which in his opinion is no longer a safe country of origin.” 31 .     In so far as relevant, the International Protection Appeals Tribunal (Procedures) Regulations, Subsidiary Legislation 420.01 of the Laws of Malta, read as follows: Regulation 3 “It shall be the function of the International Protection Appeals Tribunal to hear and determine appeals against a recommendation of the Chief Executive Officer in accordance with articles 5 to 7 of the Act.” 32 .     In so far as relevant, the Procedural Standards for Granting and Withdrawing International Protection Regulations, Subsidiary Legislation   420.07 of the Laws of Malta, read as follows: Regulation 5 “(1) A person who wishes to apply for international protection shall make an application to the International Protection Agency, or to any authority likely to receive such applications. For the purpose of this regulation, when a person indicates that he wishes to make an application for international protection to an authority likely to receive such applications, then that authority shall inform the International Protection Agency of the applicant’s intention to apply for international protection and refer such applicant to the International Protection Agency. [...]” Regulation 6 “(1) The International Protection Agency shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. (2) The International Protection Agency shall also ensure that the examination procedure is concluded within six months of the lodging of the application. [...] (4) The International Protection Agency may extend the time limit of six months for a period not exceeding a further nine months, where: (a) complex issues of fact and, or law are involved; (b) a large number of third-country nationals or stateless persons simultaneously apply for international protection, making it very difficult in practice to conclude the procedure within the six-month time limit; (c) where the delay can clearly be attributed to the failure of the applicant to comply with his obligations under regulation 4: Provided that the International Protection Agency may extend the time limit referred to in this regulation by a maximum period of three months, to ensure an adequate and complete examination of the application for international protection. [...] (6) The International Protection Agency shall ensure that the examination procedure shall not exceed the maximum time limit of twenty-one months from the lodging of the application. [...]” Regulation 8 “[...] (2) When examining applications for international protection, the International Protection Agency shall first determine whether the applicants qualify as refugees and if such applicants do not qualify, determine whether the applicants are eligible for subsidiary protection. (3) The International Protection Agency shall ensure that decisions on applications for international protection are taken after an appropriate examination and that – (a) applications are examined and decisions are taken individually, objectively, and impartially; (b) precise and up-to-date information is obtained from EASO and UNHCR as well as other relevant international human rights organisations as to the general situation prevailing in the countries of origin of the applicants and, where necessary, in countries through which they have transited and that such information is made available to the personnel responsible for examining applications and taking decisions: Provided that the information referred to in this paragraph shall be accessible to the International Protection Appeals Tribunal for the purpose of taking decision on an application for international protection; (c) the personnel examining applications and taking decisions have acquired the appropriate knowledge in the field of asylum and refugee law; (d) the International Protection Agency has the possibility to seek advice, whenever necessary, from experts on particular issues, such as medical, cultural, religious, child-related or gender issues. (4) The International Protection Agency shall provide for rules concerning the translation of documents relevant for the examination of applications.” Regulation 9 “(1) The International Protection Agency may, from time to time, lay down the rules and guidelines applicable to the procedure for the determination of an application. (2) The International Protection Agency shall examine the application as soon as possible and shall, in the assessment of the credibility of an applicant’s claim, endeavour to gather all relevant information that will enable him to make a recommendation taking due account of the applicant’s cooperation in the proceedings. (3) The applicant shall submit as soon as possible all elements needed to substantiate the application for international protection. Such elements shall consist of the applicant’s statements and all the documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality, country and place of previous residence, previous applications for international protection, travel routes, travel documents and the reasons for applying for international protection. (4) For the purpose of this regulation, the International Protection Agency or its representative shall retain all such elements for as long as necessary. (5) The International Protection Agency shall assess the relevance of the elements referred to in sub-regulation (4). When aspects of the applicant’s statements are not supported by documentary or other evidence, such aspects shall not need confirmation if: (a) the applicant has made a genuine effort to substantiate his application; (b) all relevant elements at the applicant’s disposal have been submitted and a satisfactory explanation has been given regarding any lack of other relevant elements; (c) the applicant’s statements are found to be coherent and plausible and do not run counter to specific and general information available and relevant to the applicant’s case; (d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and (e) the general credibility of the applicant has been established. (6) The assessment of the application for international protection shall be carried out on an individual basis taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; (b) the relevant statements and documents presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm; (c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” Regulation 10 “(1) Before a decision is taken by the International Protection Agency, the applicant shall be given the opportunity of a personal interview with a person competent to conduct an interview. (2) The International Protection Agency may initially provide that a personal interview on the admissibility of the application for international protection be conducted in accordance with article 24 of the Act. (3) For the purpose of this regulation, the personal interviews on the substance of the claim shall be conducted by personnel from the International Protection Agency: Provided that when simultaneous applications for international protection by a large number of third-country nationals or stateless persons make it impossible for the International Protection Agency to conduct timely interviews on the substance of each application, the International Protection Agency may provide that trained personnel of another authority be temporarily involved in conducting such interviews. (4) A legal adviser shall be allowed to assist the applicant in accordance with procedures laid down by the International Protection Agency and, where entitled to, free legal aid shall be provided to the applicant. [...] (9) The personal interview shall take place under conditions which ensure appropriate confidentiality. (10) A personal interview shall be conducted under conditions which allow the applicant to present the grounds for his application in a comprehensive manner and must: (a) ensure that the person who conducts the interview is sufficiently competent to take account of the personal or general circumstances surrounding the application including the applicant’s cultural origin, gender, sexual orientation, gender identity or vulnerability; (b) ensure that the person who conducts the personal interview is properly trained and has the acquired knowledge of problems which might affect the applicant’s ability to be interviewed. For the purposes of this paragraph, the determining authority has to ensure that all the persons conducting the interviews have been provided with relevant training in accordance with Article 6(4)(a) to (e) of Regulation (EU) No 439/2010 as well as with relevant training established and developed by the European Asylum Support Office; (c) ensure the presence of an interpreter who is able to give appropriate communication between the applicant and the person who conducts the interview. The communication shall take place in the language preferred by the applicant unless there is another language which he or she understands and in which he is able to communicate clearly; [...] (11) When conducting a personal interview on the substance of an application for international protection, the determining authority shall ensure that the applicant is given an adequate opportunity to present elements needed to substantiate the application as completely as possible, including the opportunity to give an explanation regarding elements which may be missing and, or any inconsistencies or contradictions in the applicant’s statements.” Regulation 11 “(1) The International Protection Agency shall ensure that either a thorough and factual report containing all substantive elements or a transcript is made of every personal interview. (2) The International Protection Agency may provide for audio or audio-visual recording of the personal interview: Provided that where such recording has been made, the International Protection Agency shall ensure that the recording or a transcript thereof is available in connection with the applicant’s file. (3) The International Protection Agency shall ensure that the applicant has the opportunity to make comments and, or provide clarification, orally and, or in writing, with regard to any mistranslations or misconceptions appearing in the report or in the transcript, at the end of the personal interview or within a specified time