Austria – Supreme Administrative Court, 24 February 2015, Ra 2014/18/0063
| Country of Decision: | Austria |
| Country of applicant: | Bosnia and Herzegovina |
| Court name: | Supreme Administrative Court (Verwaltungsgerichtshof) |
| Date of decision: | 24-02-2015 |
| Citation: | Ra 2014/18/0063 |
Keywords:
| Keywords |
|
Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
|
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.” |
|
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. |
|
Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
Headnote:
In order to ensure that the state is capable of providing protection, the EU Qualification Directive stipulates that a state security system must be guaranteed and also requires an examination of the special circumstances of the individual case.
Facts:
The complainant is a Muslim citizen of Bosnia and Herzegovina. He applied for asylum in Austria in the summer of 2005.
He was deployed in the Yugoslav army during the civil war in former Yugoslavia. He was a professional officer and security escort for senior officers. In this context he also worked for General Ratko Mladic and Admiral Ljubisa Beara. The latter was the subject of proceedings before the International Criminal Court, in which the complainant was summoned as a witness in Beara's defence. Because of this circumstance, he was regarded as a traitor in Bosnia and Herzegovina and various serious attacks had been carried out on him. The police were not willing to protect him.
The asylum application was rejected as it could not be established that he was exposed to a threat in his country of origin. Furthermore, the state authorities were willing and able to protect the population.
The complainant appealed against this decision on the grounds that the authorities in his state of origin could not guarantee his safety and requested an oral hearing of appeal. The Federal Administrative Court (Bundesverwaltungsgericht) dismissed this appeal, fining that Bosnia and Herzegovina is a safe country of origin for a number of reasons, including the authorities there taking up the complainant’s complaints and that the incidents took place some time ago An oral hearing could be omitted since the facts of the case had been clarified.
An appeal is lodged against this decision.
Decision & reasoning:
The Administrative Court must share the fundamental considerations disclosed by the administrative authority. No conflicting or new facts may be alleged in the respective complaint. It is neither sufficient to deny the facts in an unsubstantiated manner, nor to present new facts and thus violate§ 20 BFA-VG (Federal Office for Foreign Affairs and Asylum-Procedural Act). These principles, which have been established by case law, were disregarded in the present case.
It corresponds to the consistent case-law of the Supreme Administrative Court that persecution based on a Convention ground has asylum relevance if the state is not willing or not able to put a stop to these acts of persecution. Even persecution by private persons not based on a Convention ground is, however, relevant for the asylum decision if the home state of the person concerned is not prepared to offer protection for the reasons mentioned in Art. 1 Section A Z 2 GFK (Geneva Convention).
The decisive factor for the question of whether a sufficiently functioning state authority exists is rather whether, despite state protection, the occurrence of a disadvantage - reaching an intensity relevant to asylum - is to be expected with a significant degree of probability from this persecution for a person persecuted by a third party. Art. 7 para. 2 of the EU Qualification Directive (Directive 2011/95/EU) requires that protection against persecution or serious harm must be effective. This protection is guaranteed if the State of origin is able to prevent persecution or serious harm. This can be done through effective legislation to investigate, prosecute and punish the acts in question. The decisive moment is when a decision is taken on the application.
For the purposes of the Qualification directive, there must therefore be a double examination. Firstly, it requires that a state security system is generally in place to guarantee state protection. Secondly, however, it also requires an examination on a case-by-case basis as to whether the asylum seeker, taking into account his individual circumstances, is effectively entitled to such state protection.
In the specific case, it was not sufficient to point out to the complainant that his complaints were taken up in relation to the alleged attacks. It is also not sufficient if it is merely assumed that there was misconduct on the part of individuals who called him a traitor. Rather, it is necessary to investigate whether the statements made are correct that in the eyes of the public persons described as "traitors" are no longer granted effective protection by the security authorities. This requires a discussion of the real situation in Bosnia and Herzegovina. It is not evident that such a practice has taken place. A general reference to the fact that Bosnia and Herzegovina is a country on the list of safe third countries is not sufficient.
Nor does the reference to the fact that the alleged attacks were carried out in the past help. The complainant had already left his country of origin in 2005. Rather, so that the absence of attacks on him since then does not allow any conclusion to be drawn as to his possible vulnerability on his return to the State of origin.
On the basis of his submissions, it would be necessary here to deal with the question as to what is currently the situation of persons who are regarded as "traitors". On the basis of these contested findings and because of the legal inseparability of the decision on subsidiary protection and expulsion based on them, the finding must be set aside.
Outcome:
Appeal granted.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| § 7 AsylG 1997(Asylum Law 1997) |
| § 8 Asylum Law |
| § 75 para. 20 AsylG 2005 |
| Asylum Law 2005 |
| Art. 133 Para. 4 B-VG (Federal Constitutional Law) |
Cited Cases:
| Cited Cases |
| CJEU - C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland |
Other sources:
Domestic Case Law Cited
Austria – VwGH (Supreme Administrative Court), 28 May 2014, Ra 2014/20/0017 and 0018
Austria – VwGH (Supreme Administrative Court), 12 November 2014, Ra 2014/20/0029
Austria – VwGH (Supreme Administrative Court), 24 September 2014, Ra 2014/19/0084
Austria – VwGH (Supreme Administrative Court), 28 January 2015, Ra 2014/18/0112
Austria – (Supreme Administrative Court), 28 October 2009, Ra 2006/01/0793