Austria- Asylum Court, 6 December 2012, C16 427465-1/2012
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Asylum Court |
| Date of decision: | 06-12-2012 |
| Citation: | AsylGH 06.12.2012, C16 427465-1/2012 |
Keywords:
| Keywords |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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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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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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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. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
Neither the Applicant, who was approximately nine years old at the time of the decision, nor her parents had submitted reasons for persecution specifically relevant to the Applicant in the proceedings at the court of first instance or in the appeal. Despite this, the Asylum Court reached the conclusion – amongst other things after a personal hearing of the Applicant – that the Applicant would be persecuted directly by the state or privately in Afghanistan owing to her membership of a particular social group and the religious-political attitude to which she would be subjected. In doing so the Asylum Court applied child specific considerations.
In addition, the Court stated that group persecution was to be assumed with regard to Afghan women.
Facts:
The Applicant, who was born in 2003, lodged an application for international protection in Austria in 2011 together with her parents and four siblings, who were minors. The Federal Asylum Agency refused the applications for international protection of the entire family regarding asylum and subsidiary protection in 2012 and issued an expulsion decision with regard to Afghanistan. The Applicant lodged an appeal against this decision to the Asylum Court. In the appeal it was primarily stated that the Federal Asylum Agency had incorrectly assumed she lacked credibility and the authority had failed to recognise that the family had no reasonable internal protection alternative when faced with persecution by Kuchis. In particular the authority had not assessed the security situation in Kabul correctly. Moreover, the family was at risk of financial distress as it could no longer satisfy its most urgent basic needs in Afghanistan.
After an oral hearing before the adjudicative court, in which, amongst other things, the Applicant herself as well as her parents were heard, the Asylum Court upheld the appeal in a ruling of 06.12.2012 and granted the Applicant asylum .
Decision & reasoning:
The Asylum Court held that with regard to the Applicant and minors in general, the information given by one of the parents that the county of origin had (also) been left because of the children’s future has to be regarded at least as a submission in outline with regard to persecution relevant to asylum. This is also the case if the child has otherwise not asserted any reasons for flight of her own and the child herself has not expressed any fear of persecution.
In addition, it would not be a matter of whether a person is actually frightened in a given situation, but whether a sensible person would be frightened in this situation on Convention grounds. With regard to children, according to the UNHCR it should also be noted that the latter may in some circumstances not show recognisable fear. In this case according to the UNHCR, a decision should be taken regardless of the tangible fear of the child on the basis of the objective assessment of the risk for the child in the country of origin. The objective fear is that as a minor Afghan girl, she would be subject to discrimination equating to persecution.
In its findings the Asylum Court stated on the situation of the Applicant that in the event of a return to Afghanistan her parents would continue to live in accordance with their values. This would mean that the Applicant would not receive an education, would be raised to be a wife and mother and would be married to a man chosen by her father or grandfather in the foreseeable future. The Applicant would not have the slightest opportunity to lead an independent life in line with her beliefs, but would be screened from society living chiefly in her own four walls and having to serve her future husband. She would not have the opportunity to protect herself e.g. against acts of violence or undesired restrictions.
As a minor Afghan girl from a traditional Afghan-oriented parental home she belongs to a particular social group and would be persecuted directly by the state or privately without any prospect of state protection. The treatment she could expect in her country of origin would have consequences which would have a substantial adverse effect on the Applicant.
If she returned, the Applicant would run both the general risk for Afghan women and girls of attacks on physical integrity and safety as well as the specific threat to the Applicant, who, as the dependent child of a conservative Afghan father, would be forced to live in such a parental home. Her mother would not be able to protect the Applicant in the event of her return to Afghanistan owing to the climate of continuous latent harassment, structural violence and direct restrictions, meaning she is confronted with a situation in which she is almost completely prevented from exercising fundamental human rights.
In addition, there would be an increased risk of persecution of the Applicant owing to the basic attitudes of the Applicant with regard to the right of young women to receive an education and have their own profession outside the home, which is already recognisable and is in stark contrast to the values prevalent in Afghanistan and the traditional religious role of women.
There could also be persecution on religious grounds. This is to be assumed if the expected action were to take place on the basis of a refusal to be subject to the rites and customs associated with the religion. In the case of the Applicant there is a risk that she would stand out in Afghanistan as she grew older and on the basis of the increase in self-confidence she has already experienced in Austria (desire for a profession, experience that her mother received state aid against male violence, freedom of movement etc.), she would come under suspicion that she was not adhering to the rites and customs associated with the religion. Owing to the decisive combination of social, religious and political values, the asylum ground of political attitude also exists.
Lastly the Asylum Court recalled that owing to the case law cited in the finding there is persecution of female Afghans as the victims of group persecution, because here a collection of regulations in conjunction with the nature of their implementation is so extreme that discrimination has reached the extent of persecution within the meaning of the Geneva Convention relating to the Status of Refugees. It therefore would not depend on additional disproportionality in the event of breaches and therefore whether a breach could be expected by the asylum seeker concerned in this case.
Outcome:
The appeal was upheld and the Applicant was granted asylum.
Observations/comments:
Owing to the neglect of child specific considerations in asylum case law to date and numerous experiences with asylum proceedings that were not particularly child-oriented, this finding is interesting with regard to these aspects.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
UNHCR, Guidelines for assessing the international protection needs of Afghan asylum seekers, summary translation, 24.03.2011
UNHCR Guidelines: Child Asylum Claims under Articles 1(A)2 and 1(F), 22.12.2009
Goodwin-Gill, The Refugee in International Law² [1996]
German Department of Foreign Affairs, report on the situation relevant to asylum and deportation in the Islamic Republic of Afghanistan, February 2011
ACCORD response to inquiry, access of girls to education [a-8115], 08.08.2012