Austria - Asylum Court, 18 December 2012, E11 429.929-1/2012
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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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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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
Headnote:
Transferring the major part of the investigations into the facts of an asylum application to the Court of Second Instance impedes the purpose of an appeal stage. As a specialist authority, the Federal Asylum Agency is obliged to keep up to date with relevant developments under asylum law. Both the departure clause reasons and previous acts of persecution are to be taken into consideration in a decision. With regard to Pakistani members of the Ahmadiyya religious community, the decision by the CJEU in C-71/11 and C-99/11, Federal Republic of Germany v. Y and Z and the right to practise religion in public are to be taken into account.
Facts:
The Applicant entered Austria in September 2012 and applied for international protection. He stated that he was being persecuted because of his membership of the Ahmadi religious community. The precise details were that he had been injured during an attack on an Ahmadi mosque and had also been physically attacked on other occasions.
The Federal Asylum Agency considered both the information on his religious affiliation and the events described as lacking credibility. The Applicant was therefore awarded neither refugee status nor subsidiary protection status and an expulsion order to Pakistan was issued. The Applicant lodged an appeal against this decision at the Asylum Court.
In the appeal it was asserted amongst other things that there had been comprehension problems with the interpreter, as the hearing had been conducted in the Hindi language, which is different to Punjabi, which the Applicant speaks, in particular with regard to pronunciation. This meant that the information on religious affiliation and the events in Pakistan partly appeared contradictory or incorrect. Furthermore, numerous assertions made by the Federal Asylum Agency on the customs and factual knowledge regarding the Ahmadi religious community, which were used to try to substantiate the lack of credibility, were refuted. Witnesses were identified to prove membership of the Ahmadi religious community.
Decision & reasoning:
The Asylum Court criticised the fact that the incident described by the Applicant regarding the attack in the mosque was not discussed in the consideration of evidence and it was also not investigated whether this had occurred in the first place. The statement by the Federal Asylum Agency in the decision that membership of the Ahmadi religious community lacked credibility owing to a lack of factual knowledge, was considered to be incomprehensible by the Asylum Court. Although the assault in the mosque was not directly a cause of departure, the Federal Asylum Agency would nevertheless have been obliged to also take this event into account. This would apply in particular in light of the decision of the European Court of Justice (CJEU) of 05.09.2012 in C-71/11 and Z C-99/11, Federal Republic of Germany v. Y and Z regarding the prosecution of members of the Ahmadi religious community in Pakistan.
However, in the decision of the Federal Asylum Agency this CJEU decision was not taken into consideration nor were definitive individual investigations undertaken regarding the Applicant. In order to avoid transferring the central investigations to the Courts of Second Instance, a cassation decision was taken. The Federal Asylum Agency was charged with undertaking further questioning, expanding the country reports with statements on the current situation of members of the Ahymadi religious community, incorporating the decision by the CJEU in C-71/11 and C-99/11, Federal Republic of Germany v. Y and Z in the decision and issuing a new decision with comprehensible consideration of evidence.
Outcome:
The appeal was upheld, the disputed decision overturned and the proceedings referred back to the Federal Asylum Agency.
Subsequent proceedings:
Status on 04.08.2013: proceedings pending at Federal Asylum Agency
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-71/11 and C-99/11 Germany v Y and Z |
Other sources:
UNHCR: Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14.05.2012 UNHCR report of 14.05.2012