Austria - Federal Administrative Court, 17 December 2014, W101 2009216-1
| Country of Decision: | Austria |
| Court name: | Federal Administrative Court (Bundesverwaltungsgericht) |
| Date of decision: | 17-12-2014 |
| Citation: | W101 2009216-1/6E |
Keywords:
| Keywords |
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Stateless person
Description
Person who is not considered as a national by any State under the operation of its law. This includes also a person whose nationality is not established. |
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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
A Palestinian who leaves Syria due to the unstable security situation as a result of the Syrian conflict must be regarded as having been forced to leave UNRWA’s area of operations and may thus qualify as a refugee without being required to show fear of persecution.
Facts:
The applicant is a stateless Palestinian from Syria who was registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) as a refugee. He was born in Syria where he lived his whole life with his wife and three children. Following the bombardment of his house in October 2012, they moved to his parents’ house in Damascus. In the aftermath, he fled to Austria.
The applicant also claimed that he was subject to persecution by Syrian troops, because he had provided help to other people during the conflict. The Austrian asylum authorities (Bundesamt für Fremdenwesen und Asyl) rejected the plausibility of this claim. The Austrian authorities had denied his application for refugee status but they granted him subsidiary protection on the basis that his life was in real danger in Syria considering the unstable security situation as a result of the conflict.
The applicant lodged an appeal against the authorities’ decision to reject his application for refugee status before the Federal Administrative Court on 17 June 2014.
Decision & reasoning:
The Federal Administrative Court held that, due to the ongoing unstable security situation in Syria, the applicant, was entitled to asylum under the ipso facto protection granted under Art. 12(1)(a) of the Qualification Directive 2011/95/EU and Art. 1D of the 1951 Refugee Convention (Geneva Convention). As the Austrian provision implementing Art. 12 of the Directive (§ 6 AsylG) is silent on the ipso facto protection granted under the second sentence of Art. 12(1)(a) of the Directive, this provision of the Directive was directly applicable.
In its decision, the Court then enlarged upon CJEU case law relating to Art. 12(1)(a) of the Directive which recognises that Palestinians who have been forced to leave the UNRWA area of operations may qualify as refugees without being required to show fear of persecution. The Austrian authorities failed to take into account that the applicant was not required to demonstrate persecution.
The key issue is whether the applicant was forced to leave Syria. The Court first confirmed the relevant legal standards established in CJEU, C-364/11 - El Kott, para. 76, highlighting inter alia that in light of the object and purpose of the applicable provisions, the applicant must be regarded as having been forced to leave if his personal safety is at serious risk and if it is impossible for UNRWA to guarantee living conditions in this area in line with the mission entrusted to the agency. The Court further referred to the UNHCR’s interpretation that reasons for departure include threats to life, physical security or freedom, or other serious protection-related reasons such as situations of armed conflict or other situations of violence and situations of civil wars.
The Court then established that such a situation existed in the case at hand. The Austrian authorities - concerning subsidiary protection - had accepted that, in the event of return, the applicant would face security deficits of considerable intensity and a threat to his life as a result of the armed conflict in Syria. This factual basis – which continued to exist – qualified the applicant as a refugee under Art. 12(1)(a) of the Directive for it is established that the applicant’s personal safety was at serious risk making it impossible for the applicant to return to Syria (to his previous house, to his parents’ house, or to any other place in Syria) or to avail himself of UNRWA assistance in Syria, and that it is impossible for UNRWA to guarantee appropriate living conditions in Syria.
Finally, there were no factual indications in the case that, alternatively, the applicant could have sought UNRWA assistance outside of Syria (e.g. in Lebanon or Jordan). In any case, such alternative areas would need to be safe and reasonable, and Palestinian refugees are not automatically entitled to freely enter and move in the whole UNRWA area of operations. The Court also expressed legal concerns as the refugee status may cease to exist upon return.
Outcome:
Appeal granted; the applicant is entitled to asylum; recognition of refugee status
Observations/comments:
This case summary was written by Mehrnusch Anssari, PhD Candidate at Cologne University and member of the Research Group of the Refugee Law Clinic Cologne.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - § 3 |
| 6 AsylG 2005 (Asylum Act) |
Cited Cases:
| Cited Cases |
| CJEU - C-364/11 Mostafa Abed El Karem El Kott, Chadi Amin A Radi, Hazem Kamel Ismail v Bevandorlasi es Allampolgarsagi Hivatal (BAH) |
| CJEU - C-31/09 Nawras Bolbol v Hungary |
Other sources:
Domestic Case Law Cited
Austria - Constitutional Court (VfGH), 12 September 2013, U1053/2012
Austria - Constitutional Court (VfGH), 29 June 2013, U706/2012
Austria - Constitutional Court (VfGH), 29 June 2013, U674/2012
Austria – Higher Administrative Court (VwGH), 21 January 1999, 98/20/0350
Austria – Higher Administrative Court (VwGH), 30 November 2000, 98/20/0441
Austria – Higher Administrative Court (VwGH), 24 November 2005, 2003/20/0109
Austria – Higher Administrative Court (VwGH), 26 January 2006, 2005/20/0304