Austria - Asylum Court, 29 November 2013, B1 431721-1/2013
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Asylum Court (Dr. RUSO, Mag. MAGELE) |
| Date of decision: | 29-11-2013 |
| Citation: | B1 431721-1/2013 |
Keywords:
| Keywords |
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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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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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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. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. 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. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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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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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
An application for international protection lodged by an Afghan who illegally entered Austria was rejected. The Court found that the applicant had no well-founded fear of persecution in his country of origin nor was he to be granted the subsidiary protection status.
Facts:
The applicant lodged an application for international protection on 09 July2012 after having illegally entered Austria. The applicant was a senior official in the Afghan ministry for agriculture. He pleaded that he had been threatened by the Taliban in Afghanistan, because he had worked for the state. Further, he said he had been threatened by the property mafia, because he was instructed to take action against corrupt officials and to report those officials to the public prosecutor's office. He claimed that, if returned to Afghanistan, there was a risk that he would be killed by the mafia or the Taliban.
The Federal Asylum Agency rejected the application and the applicant appealed against the decision on 27 December 2012.
Decision & reasoning:
The Asylum Court, through a written procedure, assessed the application for international protection under both refugee status and subsidiary protection criteria.
The court ruled that the applicant lacked a well-founded fear of persecution. The well-foundedness of a fear should be considered in relation to an intelligent person in such a situation, and not in relation to the actual fear of the individual concerned. The risk of persecution is to be assumed if persecution has a considerable probability and if such persecution could give reason to find the protection of the home state unreasonable.
The Court followed the view of the Federal Asylum Agency that it was not traceable why the applicant, being a state official, had not sought protection by superior officials. The Court was also not persuaded that the applicant had not been facing threats and assaults for many years during his office, but that this suddenly had changed. According to the Court there also had not been any attacks against him or his family members pursuant to the applicant's statement.
With respect to subsidiary protection, the Court noted that such status is only to be granted if an expulsion would mean a real risk of violating Article 2 ECHR, Article 3 ECHR or the Protocols no. 6 and no. 13 to the ECHR, or if there is a serious threat to life or integrity as a consequence of an international or intra-state conflict. There must be cogent reasons and concrete facts for the real risk. The risk prediction should relate to the situation of the individual concerned and to the general situation of human rights in the state of destination.
The Court held that it was not sufficient to claim the general bad security situation and supply situation in Afghanistan; the applicant must also state the individual circumstances why a real risk of a violation of Article 3 ECHR is probable.
The Court ruled that a risk of the applicant’s Article 8 ECHR rights being violated was not the case here, because the applicant had no family ties to Austria, had only been in Austria for a short period of time, had no permitted work and had not said he had any knowledge of the German language.
Since the public interest in complying with rules regulating the entry and the stay of aliens outweighed the private interests of the applicant in him remaining in the federal territory, expulsion was highly recommended and not unreasonable, according to the Court.
The decision was made in written procedure, because the facts seemed to be clear and it was evident from the prior investigation that the application was not consistent with the facts. On appeal, no new and sufficiently concrete allegations of other reasons for protection were produced. The applicant did also not object the evidence given by the Federal Asylum Agency. Further, no objection with respect to the evaluation of evidence and the admissibility expulsion were raised in the appeal.
Outcome:
The appeal was rejected. The decision of the Federal Asylum Agency was confirmed and the expulsion was found admissible.
Observations/comments:
This summary was provided courtesy of DLA Piper.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v. Ireland [GC], Application No. 45036/98 |
| ECtHR - Said v Netherlands, Application No. 2345/02 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Ndangoya v Sweden, Application No.17868/03 |
| Austria - Asylum Court, 26 January 2010, C10 409335-1/2009/3E |
| Austria - Asylum Court, 23 February 2010, C10 410133-1/2009/2E |
| Austria - Asylum Court 11 November 2010, C2 315601-1/2008/11E |
Other sources:
Filzwieser, Subjektiver Rechtsschutz und Vollziehung der Dublin II-VO - Gemeinschaftsrecht und Menschenrechte, migraLex, 1/2007
Premiszl, Schutz vor Abschiebung und Traumatisierten in "Dublin-Verfahren" migraLex 2/2008
Filzwieser/Sprung, Dublin II-Verordnung. Das Europäische Asylzuständigkeitssystem. Berliner Wissenschafts-Verlag, Neuer Wissenschaftlicher Verlag, Berlin, Wien, Graz 2010