Austria – Administrative Court - 24 June 2020, Ra 2020/20/0195
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court (Verwaltungsgerichtshof) |
| Date of decision: | 24-06-2020 |
Keywords:
| 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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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
Headnote:
A court may dismiss the appeal without further proceedings in a non-public session, if the appeal does not depend on the solution of a legal question that is of fundamental significance.
In the case of an Afghan, the appeal does not depend on the solution of a fundamental question, if the lower instance has sufficiently examined the situation in the appellant’s country of origin. This is the case, if the court sufficiently considered possible internal flight alternatives by air.
Facts:
The appellant is an Afghan citizen.
By decision of 27 June 2018, the Federal Office for Foreign Affairs and Asylum (Bundesamt für Fremdwesen und Asyl) rejected the appellant’s application for international protection for asylum regarding his state of origin Afghanistan. The complaint was dismissed by the lower instance as unfounded and a potential appeal as inadmissible.
The appellant’s subsequent appeal contends that the lower instance has not properly examined the possible internal flight alternatives by air to Herat and Mazar-e Sharif. It claims that Kabul and the internal flight alternatives in Herat and Maza-e Sharif are classified as unsafe. Further, it asserts that the deportation of the appellant to Afghanistan is inadmissible, if an internal flight alternative exists, but a direct deportation into the region of an internal flight alternative is impossible and only feasible over unsafe regions as Kabul. Moreover, the appellant mentions that the federal administrative court did not sufficiently consider the integration, the improved German language skills and the nonage of the applicant.
Decision & reasoning:
The court dismissed the appellant’s appeal without further proceedings in a non-public session, because the appeal does not depend on the solution of a legal question that is of fundamental significance.
The lower instance court asserted correctly that according to the UNHCR guidelines and the EASO report, these cities are safe possibilities for the appellant to reach his final destination. First, it is acceptable to arrive at the airport of Kabul (which is an unsafe region) but then go straight to the final destination in Herat or Mazar-e Sharif. Second, also direct international flight connections to Mazar-e Sharif and other safe regions without a stop in Kabul exist.
Further, the lower instance court’s balance of interests is not reversible, because it was carried out on a procedurally correct basis and in a reasonable manner within the framework of the principles developed by case law. The lower instance court decided that the public interest in a termination of residence overweighs the appellant’s interest, notwithstanding his advanced integration in Austria and his nonage.
Outcome:
Appeal dismissed.
Observations/comments:
The appeal of the applicant was against the judgement of the federal administrative court of the 10th of march 2020 (W114 2202885-1/17E).
This case summary was written by Leona Sitz, student at the University Cologne.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Art. 133 IV B-VG |
| § § 34 Ia |
| 25 a I |
| 28 III VwGG |
Other sources:
Domestic Case Law Cited
VwGH 27.4.2020, Ra 2019/20/0242
VwGH 30.10.2019, Ra 2019/14/0451
VwGH 27.8.2019, Ra 2019/14/0351
VwGH 28.1.2010, Ra 2020/20/0010
VwGH 2.12.2019, Ra 2019/20/0537,
VwGH 5.6.2019, Ra 2019/18/0078
Other Sources Cited
EASO Report, Key socio-economic indicators, Focus on Kabul City, Mazar-e Sharif and Herat City, Country of Origin Information Report, April 2019, S 19
EASO report: Country Guidance: Afghanistan, Guidance note 2019
UNHCR report/guidelines ((https://www.unhcr.org/publications/legal/50ae46309/guidelines-international-protection-8-child-asylum-claims-under-articles.html)