Austria - Constitutional Court (VfGH), 16 September 2013, U1268/2013
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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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
This case involved a violation of the right to equal treatment of foreigners as a result of a rejection of the application for international protection and expulsion of the homosexual Applicant to Nigeria because of a failure by the decision-maker to make its own country determinations and to thoroughly examine the situation of homosexuals in Nigeria.
Facts:
The Applicant travelled to Austria in 2009 and applied for international protection, for which he gave the reason that he was to have been murdered by a certain person and had therefore left the country. This application was finally legally determined by a refusal in November 2010.
In December 2010 he again applied for international protection, whereby he pleaded that he was homosexual and had had a relationship with a man in Nigeria. The latter’s wife had seen them together one day and had threatened to call the police. He feared he would be arrested by the police or killed because homosexual acts are forbidden in Nigeria and are a criminal offence throughout the whole country. In Austria, he maintained sexual relationships with three men. At a later date, the Applicant submitted a statement by his current partner as evidence of the existence of a family life deserving protection within the meaning of Art 8 of the ECHR.
The asylum application was initially rejected on the grounds that it had already been decisively determined, his sexual orientation was found not to be credible and, even if it was assumed to be true, no new facts had been raised after the final legal determination in the first proceedings. In the final analysis, this decision by the Asylum Court was revoked by the Constitutional Court on the grounds of an arbitrary violation of the obligation to investigate.
After holding an oral hearing and then the referral of the proceedings to the Federal Asylum Agency by the Asylum Court, the Federal Asylum Agency finally issued a further decision in January 2013 again refusing the application on the grounds that it had already been determined. The Asylum Court did not uphold the appeal lodged against this. The Asylum Court stated, amongst other things, that the grounds for flight on the basis of homosexuality submitted only during the second asylum proceedings did not represent “any new plea”, which had arisen only after the completion of the first asylum proceedings because the Appellant had expressly stated that he had already known this a long time before this application was lodged. The decision (to be defined as a classic mental reservation) to wish to make his alleged homosexuality known neither before the Federal Asylum Agency nor the Asylum Court as part of his original proceedings must ultimately be found to be the Applicant’s own responsibility or he must be answerable for it as a result and this does not provide an adequate reason for repeated proceedings on the merits. With regard to the general situation in the country of origin, the Asylum Court based itself on the country findings made by the Federal Asylum Agency and in summary stated on the subject of sexual orientation, that “a general state persecution of members of this group was not indicated; on the contrary every weekend there were even adverts in the daily newspaper with the highest circulation, “The Sun”, with contact details for gay or lesbian Nigerians.“ Therefore “against this background, a violation of the rights granted [to the Applicant through] Art. 3 of the ECHR is not to be feared with sufficient probability in this case in the event of his return.”
The Applicant lodged another appeal against this decision to the Constitutional Court.
Decision & reasoning:
According to the case law of the Constitutional Court, the asylum authorities are obliged with regard to a subsequent application in asylum proceedings to subject changes to the facts of the case to an examination not only concerning the recognition of asylum status, but also concerning the grant of subsidiary protection status.
The Asylum Court rightly assumed in the contested decision – on the basis of the statements by the Applicant – that pleading flight on the grounds of homosexuality is not a new plea arising after the completion of the asylum proceedings; however it apparently bases its decision implicitly on the Applicant being a homosexual and undertakes in this connection a – cursory – examination with regard to the risk of a violation of Art 3 of the ECHR.
However, the Asylum Court makes no country findings of its own in the contested decision but deduces from the country findings undertaken by the Federal Asylum Agency regarding the situation of homosexuals in Nigeria that general state persecution of members of this group does not exist because of the lonely hearts adverts mentioned; it therefore adopts the results – together with the latter’s legal assessment – arising from a single country report reproduced in the decision by the Federal Asylum Agency, but completely disregards those other country reports contained in the decision by the Federal Asylum Agency, from which it arises that homosexual acts of any kind in Nigeria are threatened with prison sentences according to secular law (up to 14 years) as well as with physical punishment according to Islamic law (up to death by stoning). Against the background of these country findings and the pleading that for the Applicant “it would be dangerous to live as a homosexual in Nigeria”, a review should in any case have been undertaken whether in his actual situation he would have been threatened with danger in accordance with Art. 3 of the ECHR if he was returned to his country of origin. The Asylum Court therefore acted arbitrarily in its decision by failure to undertake a sufficient examination – with which the expulsion decision ordered for the Applicant in accordance with § 10(1)(1) of theAsylum Act is inseparably associated.
Outcome:
The appeal was upheld and the challenged decision was revoked.
Observations/comments:
Previous decisions in these proceedings:
- Asylum Court (AsylGH) 20.12.2010, A12 410.395-2/2010
- AsylGH 21.07.2011, A12 410.395-3/2011
- Constitutional Court (VfGH) 05.03.2012, U1776/11
- AsylGH 18.10.2012, A12 410.395-3/2011
- AsylGH 24.04.2013 A12 410.395-4/2013
In the decision VfGH 05.03.2012, U1776/11, the Constitutional Court had already stated the following on the same case:
“The Asylum Court bases its decision chiefly on the lack of credibility of the pleading by the Appellant with regard to his homosexuality; it states on this subject that the latter did not broach the issue of his sexual orientation during the first asylum proceedings and had not commented in more detail on his alleged sexual relationship in Nigeria. If this might also conceivably apply to the pleading with regard to Nigeria, then the Appellant submitted a statement during the proceedings before the Federal Asylum Agency by his alleged partner in Austria in which the latter confirms the existence of cohabitation, and, in his appeal to the Asylum Court, applied for the latter to be heard as a witness. The Asylum Court did not comply with this request; in the contested decision it responded neither to the statement by the partner nor gave reasons as to why this was not taken into consideration. This however means that the Asylum Court has failed to give reasons why it – despite evidence being available in the file – assumes the lack of credibility of the pleading by the Appellant on this subject.”
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
U.S. Department of State: Country Report on Human Rights Practices for 2011 – Nigeria
Foreign Affairs Office: Report on the situation relevant to asylum and deportation in the Federal Republic of Nigeria, Status: April 2012
Austrian Embassy Abuja: Asylum countries report Nigeria, November 2011
§§ 214, 217 of the Federal Nigerian Criminal Code