Austria: Supreme Administrative Court (VwGH), 23. January 2018, Ra 2018/18/0001
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Administrative Court (VwGH) |
| Date of decision: | 23-01-2018 |
| Citation: | Ra 2018/18/0001 |
Keywords:
| Keywords |
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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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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)." |
Headnote:
For the assumption of reasonable internal flight alternatives, a case-by-case assessment must be made on the basis of sufficient findings about the expected situation of the asylum applicant in the country of origin. On the basis of general information on the situation in the country of origin, a young, healthy man with school education and professional experience and who is familiar with the local conditions, can in principle be expected to resettle in Kabul.
Facts:
The applicant is an Afghan national and filed an application for international protection in Austria. The Federal Office for Immigration and Asylum (BFA) rejected the application and ordered the deportation to Afghanistan. The appeal filed against this decision was dismissed by the Federal Administrative Court (BVwG) as unfounded. The court stated that the applicant came from a village in Kapisa, a province in Afghanistan, and attended secondary school in Kabul for three years before leaving the country. The court stated that no persecution could be established in the event of his return and that Kapisa is a relatively peaceful province in Afghanistan, so that he could return there without any danger. Furthermore, in moving to Kabul, an internal flight alternative was available to him. The applicant is a young man who is able to work, speaks the local language and is familiar with the local conditions in Kabul.
The applicant brought the present extraordinary appeal before the Supreme Administrative Court (VwGH), in which he argued that the BVwG had determined his individual threat in the region of origin only extremely inadequately and had disregarded essential evidence. Furthermore, the justification of an internal flight alternative was based on an inconclusive expert opinion and would have required more detailed findings on his specific situation.
Decision & reasoning:
The appeal is admissible, but unfounded.
The VwGH confirms the assessment of the BVwG that the Afghan capital Kabul offers a reasonable internal flight alternative. When examining a reasonable internal flight alternative, it must be assessed whether the asylum applicant who is persecuted in one part of his country of origin or who is threatened with serious harm can lead a "relatively normal life" without undue hardship in another part of the country of origin. The general circumstances of the country of origin and the personal circumstances of the asylum seeker must therefore be taken into account.
In the case of a young, healthy man with school education and professional experience, it was not apparent, on the basis of the general information on the situation in the country of origin, that resettlement in Kabul could not reasonably be expected. This applies even if -as in the present case- the asylum applicant was not born in Afghanistan, had no relatives in Afghanistan, and had grown up in Iran. The assessment must be made on a case-by-case basis and on the basis of sufficient findings about the asylum applicant’s expected return situation. A sufficient assessment was undertaken by the BVwG, which has also relied on country reports in addition to the alleged inconclusive expert opinion.
Outcome:
Appeal dismissed.
Observations/comments:
This summary is written by Theresa Richter, LLM student of Queen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Supreme Administrative Court (VwGH), 8. August 2017, Ra 2017/19/0118 |
| Federal Constitutional Court, 12. December 2017, E2068/2017 |
Other sources:
Hathaway/Foster, The Law of Refugee Status 2 (2014).
UNHCR-Guidelines regarding international protection No.4 "Internal flight and resettlement alternative " dated 23. July 2003.
Marx, Handbook on the Qualification Directive (2009).