Austria – Higher Administrative Court, March 21st 2018, Ra 2017/18/0474
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Higher Administrative Court |
| Date of decision: | 21-03-2018 |
| Citation: | Ra 2017/18/0475, Ra 2017/18/0476, Ra 2017/18/0479, Ra 2017/18/0478, Ra 2017/18/0477 |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(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 these activities will 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.” |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person 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 or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The judicial examination of whether subsidiary protection shall be approved requires a thorough assessment of the individual case. This applies in particular for especially vulnerable persons.
Facts:
An Afghan citizen applied for asylum and international protection in the federal territory of Austria on October 25th 2015 and May 19th 2016 respectively, together with his wife, their underage daughter and their three underage sons. As reason for flight, the applicant stated his brother was kidnapped and killed by the Taliban. He now wanted a better a life for his children.
The Federal Immigration and Asylum Service (BFA) dismissed all applications. The Federal Administrative Court (BVwG) dismissed the appeal as unfounded and declared a further appeal as inadmissible on the basis of Sec. Art. 131 Paragraph 4 B-VG.
The Court had reasoned that, during their stay in Austria, the applicants did not adapt a lifestyle that would justify a right to internal protection. They also did not have a right to subsidiary protection. A return to the Afghan capital of Kabul would not violate their rights granted by Sec. 2 and Sec. 3 ECHR. The family would be able to live a safe and stable life in Kabul.
The underage children would also not be subjected to the danger of inhumane treatment. They would have the possibility to visit a school and live under harmonic, nonviolent family circumstances. Their familial network would also protect them from dangers of sexual abuse, child labour or other forms of violence. The family still had strong connections to their country of origin. Therefore, the public interest of a return would overweigh the applicants’ one of staying in Austria.
A further appeal criticized the BVwG for not making additional inquiries regarding the reason for flight as well as not acknowledging the applicants’ efforts to assimilate. It especially questioned the decision regarding subsidiary protection. It had not been made under appropriate judgement of the specific, current situation.
Decision & reasoning:
The VwGH approved the further appeal as far as the BVwG not having examined the applicants’ right to subsidiary protection appropriately. A complete assessment of the individual case was necessary to determine whether a return to the country of origin would constitute a real risk of violating Sec. 3 ECHR.
Considering the possible dangers, the personal situation of the person concerned would have to be put in relation to the general status of human rights in the country of destination. It had to be considered that the applicants are a family with four underage children and therefore an especially vulnerable group of people in need of protection.
The actual level of security and freedom the applicants can experience in the country of origin had to be analysed. Kabul being comparably safe and stable would not imply that this is also the case for vulnerable persons. The numbers of underage victims and civil victims in Afghanistan, specifically Kabul, had been enormously high in recent years.
The present case had to be examined more specifically and recent reports had to be taken into consideration. Although the BVwG had considered several essential aspects, it did not provide a thorough judgement of the possible dangers as well as the minors’ vulnerability. The further appeal therefore rightfully criticized a violation of the obligation to state reasons.
On the basis of § 42 Paragraph 2 Numbers a and b, the appealed decision was set aside in regard to the non-approval of subsidiary protection. The VwGH dismissed the further appeal regarding any other claims.
Outcome:
Appeal partially granted.
Subsequent proceedings:
The case was revised in the BVwG’s decisions in Zl. W220 2158926-1/12E, Zl. W220 2158931-1/11E, Zl. W220 2158938-1/9E, Zl. W220 2158929-1/9E, Zl. W220 2158934-1/9E, Zl. W220 2158936-1/9E
Observations/comments:
This case summary was written by Niklas Klug, undergrad student at University of Cologne.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Domestic Case Law Cited
Austria - VwGH – Supreme Administrative Court - December 13th 2017, Ra 2017/01/0187
Austria - VwGH – Supreme Administrative Court - September 13th 2017, Ra 2016/12/0118
Austria - VwGH – Supreme Administrative Court - November 23rd 2017, Ra 2016/11/0160
Austria - VwGH – Supreme Administrative Court - January 23rd 2018, Ra 2017/18/0301
Austria - VwGH – Supreme Administrative Court - December 13th 2016, Ra 2016/20/0098
Austria - VwGH – Supreme Administrative Court - August 30th 2017, Ra 2017/18/0089
Austria - VwGH – Supreme Administrative Court - August 30th 2017, Ra 2017/18/0036
Austria - VwGH – Supreme Administrative Court - November 29th 2017, Ro 2017/18/0002