Austria: Supreme Administrative Court, 1 March 2018, Ra 2017/19/0425
| Country of Decision: | Austria |
| Court name: | Supreme Administrative Court (Verwaltungsgerichtshof) |
| Date of decision: | 01-03-2018 |
| Citation: | VwGH, 01.03.2018, Ra 2017/19/0425 |
| Additional citation: | ECLI:AT:VWGH:2018:RA2017190425.L00 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
In the assessment of a real risk of inhuman treatment or a serious threat to life or physical integrity in a situation of indiscriminate violence within an armed conflict, not only the general security and supply situation has to be considered, but also the “specific distinguishing features” of the applicant, which expose him/her to a higher risk than the average population.
In the present case, the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) did not assess the individual circumstances of the applicant, disregarding the binding force of a previous ruling of the Supreme Administrative Court (Verwaltungsgerichtshof, VwGH).
Facts:
The applicant, an Afghan citizen who had worked as interpreter for the U.S. forces and for a cooperating transport company in Afghanistan, applied for international protection in Austria. On 15 February 2011, the Federal Office for Asylum (Bundesasylamt) rejected his application and ordered his deportation to Afghanistan.
On 26 August 2016, the Federal Administrative Court rejected his appeal against the denial of subsidiary protection and the order of deportation. In an extraordinary review of 22 March 2017, the Supreme Administrative Court annulled the decision on appeal (VwGH, 22.03.2017, Ra 2016/18/0267).
On 14 August 2017, the Federal Administrative Court issued a second decision on appeal replacing the first one, but again rejecting the appeal (BVwG, 14.08.2017, W197 1418122-1/47E). The present decision of the Supreme Administrative Court reviews the second decision on appeal of the Federal Administrative Court.
Decision & reasoning:
In its review, the Supreme Administrative Court objected to the following points in the Federal Administrative Court’s assessment of the requirements for subsidiary protection under § 8(1) AsylG (Asylgesetz 2005, Asylum Law 2005):
- The Federal Administrative Court did not state clearly if it considered the statements of the applicant regarding his employment credible. (Even though the following reasoning suggests that it considered the statements credible.)
- The Federal Administrative Court’s assessment on whether the applicant would face a real risk of treatment contrary to article 3 ECHR upon return in his country of origin was based solely on the general security and supply situation, particularly on the question whether the applicant would have a sufficient livelihood. This requirement would only be fulfilled in “exceptional circumstances” which were “by no means” given in the present case.
- The general assessment of a real risk was based on outdated country of origin information of 2014.
The Supreme Administrative Court refers to its legal opinion on the standard of assessment of the requirements for subsidiary protection under § 8(1) AsylG, as expressed in its previous ruling of 22 March 2017. The threshold for a real risk of treatment contrary to articles 2 or 3 ECHR or a serious threat to life or physical integrity upon return can be established in a generally precarious security situation of indiscriminate violence within an armed conflict, (a) if the situation is of such an extremity that it is “not only possible, but downright probable” that the applicant, solely by his/her presence, would become victim of indiscriminate violence; or (b) if “specific distinguishing features” of the applicant expose him/her to a higher risk than the average population.
In accordance with §63(1) VwGG (Verwaltungsgerichtshofgesetz, Law on the Supreme Administrative Court) the Federal Administrative Court is bound by the legal opinion of the Supreme Administrative Court when giving a replacement decision. By not taking into consideration the possibility that the applicant’s former work for international forces could constitute a “specific distinguishing feature” establishing a real risk, the Federal Administrative Court disregarded the binding force of the Supreme Administrative Court’s ruling of 22 March 2017.
Consequently, the Supreme Administrate Court annulled the Federal Administrative Court’s decision in accordance with §42(2)(1) VwGG due to the “unlawfulness of its content”.
Outcome:
Annulment of the Federal Administrative Court’s decision on appeal (BVwG, 14.08.2017, W197 1418122-1/47E).
Subsequent proceedings:
The Federal Administrative Court will decide again on the appeal, taking into consideration the legal opinion of the Supreme Administrative Court.
Observations/comments:
Please note that the Supreme Administrative Court’s reasoning and the annulment of the decision on appeal due the “unlawfulness of its content” (“Rechtswidrigkeit seines Inhalts”) is based on the fact that the Federal Administrative Court did not respect the binding force of the Supreme Administrative Court’s previous ruling. For a more comprehensive reasoning regarding the standard of assessment required under Austrian law, please refer to the first ruling of the Supreme Administrative Court (VwGH, 22.03.2017, Ra 2016/18/0267).
This case summary was written by Lisa-Marie Bache, LL.M. in International Human Rights Law (University of Groningen) and member of the research group of the Refugee Law Clinic Cologne.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Commission Regulation (EC) No 1560/2003 |
| Bundes-Verfassungsgesetz |
| (B-VG |
| Federal Constitutional Law) |
| article 133(4) |
Other sources:
Domestic Case Law Cited
BVwG, 26.08.2016, Zl. W197 1418122- 1/25E
BVwG, 14.08.2017, W197 1418122-1/47E
VwGH, 21.04.2016, Ro 2016/11/0007
VwGH, 29.06.2016, Ro 2014/05/0011
VwGH, 21.02.2017, Ra 2016/18/0137
VwGH, 22.03.2017, Ra 2016/18/0267
VwGH, 19.06.2017, Ra 2017/19/0095