Austria - Administrative Court, 17 April 2007, 2006/19/0675
Keywords:
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
Traumatised people and those who have suffered otherwise psychologically and physically from flight behave differently when giving evidence compared with healthy people. This can mean that the full submissions relevant to asylum are not provided at the start of the proceedings or the traumatisation itself is not mentioned. These circumstances are to be taken into account during the ban on new evidence.
Facts:
In 2005 the Applicant fled together with her four daughters who were minors from Chechnya to Poland, where she requested international protection. In September 2005 she continued her journey to Austria, where she also made an application for international protection. When asked about her reasons for fleeing, she stated that she had left Chechnya owing to the danger from crack-downs by the Russian military. However, she had not been the victim of violence herself. No medical examination was undertaken and the authority did not ascertain any signs of traumatisation.
The application for international protection was refused by the Federal Asylum Agency owing to the jurisdiction of Poland according to the Dublin Regulation and expulsion to Poland was ordered for the Applicant and her daughters. They lodged an appeal against this, in which the lack of clarification of traumatisation was criticised. Traumatisation on the basis of experiences in the country of origin should allow proceedings in accordance with Section 24b Para. 1 Asylum Act (AsylG) 1997. Through the crack-downs she experienced, the Applicant had to watch the death of several relatives, lost two children of two and four years of age and had only recently separated from her husband. The Federal Asylum Office had been obliged to clarify whether any traumatisation had been experienced solely on the basis of arrival from Chechnya.
The Independent Administrative Chamber (which was the body with appellate capacity at that time) refused the appeal without any further findings. The grounds for this were, amongst other things, that the Applicant had not given any indications of traumatisation either in her statements in the proceedings at the Court of First Instance on her reasons for fleeing, nor in her general behaviour. The information as part of the appeal had also not been sufficiently substantiated. There was no obligation arising from Section 24b AsylG 1997 for the asylum authorities to carry out a medically based clarification of any traumatisation merely on the basis of origin without the appearance of further indications of the latter.
The Applicant lodged an appeal against this decision at the Administrative Court.
Decision & reasoning:
The Administrative Court agreed with the Independent Administrative Chamber to the extent that there were no indications of any traumatisation in the proceedings before the Federal Asylum Agency. However, on the other hand the information as part of the appeal clearly indicated such traumatisation.
Although there was in principle a ban on new evidence in proceedings in the Court of Second Instance (Section 32 (1) AsylG 1997), facts and evidence which the Applicant was unable to submit are excluded from this. In particular, persons who have left their home country for reasons relating to asylum more frequently suffer from traumatisation or owing to their exceptional psychological or physical condition are not in a position to report what they have experienced in the proceedings in the Court of First Instance through no fault of their own as well as not being able to broach the issue of traumatisation itself. By its very nature this affects those persons more frequently who have fled from persecution relating to asylum than those who enter the country for reasons unrelated to asylum. Owing to the higher requirement for protection of the first group, the ban on new evidence applies only to a limited extent in the Court of Second Instance.
The Administrative Court found furthermore that although the information as part of the appeal leaves a lot to be desired in terms of clarity, owing to the lack of questioning by the asylum authorities, such circumstances could not be ruled out. A refusal to verify the latter merely on the basis of the unsubstantiated submission is inadmissible in any case because this sets a standard for the tangibility of the submission, which does not take sufficient account of the special situation of traumatised persons.
For these reasons the decision by the Independent Administrative Chamber was revoked owing to the illegality of the content.
Outcome:
The appeal was upheld and the decision was revoked.
Observations/comments:
The regulation in Section 24b AsylG 1997, which was referred to and according to which asylum seekers were to be admitted to substantive proceedings if there were medical indications of traumatisation, expired on 31.12.2005.
Now inadmissibility in this context of a rejection of an application for international protection as part of the Dublin Regulation is based in particular on Article 3 ECHR.
The ban on new evidence was however adopted immediately with the same contents in what is now Section 40 (1) AsylG 2005. This regulation does not concern specific proceedings as part of the Dublin Regulation, but all asylum proceedings.
This means that new facts and evidence can be presented in the appeal, amongst other things, only if the Applicant was not in a position to submit these earlier.
Through the decision by the Administrative Court of 27.09.2005, 2005/01/0313, the ban on new evidence was already restricted to the extent that it would have validity only in cases of abuse.