Austria - Asylum Court, 29 November 2013, S25 438541-1/2013
Keywords:
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Country of former habitual residence
Description
The country in which a stateless person had resided and where s/he had suffered or fears s/he would suffer persecution if s/he returned. For the purposes of the Qualification Directive, “country of origin” means, for stateless persons, the country or countries of former habitual residence. |
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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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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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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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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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
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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)." |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
The Asylum Court upheld the Federal Asylum Agency’s rejection of the mother and son’s application on the basis that Poland was responsible for the application under the Dublin II Regulation. The Court held that Austria was not obliged to apply Article 3(2) Dublin II Regulation due to a threatened violation of Article 3 or Article 8 ECHR.
Facts:
The applicants were mother and son. They lodged an application for international protection with the Federal Asylum Agency on 15 August 2013. In August 2013, the applicants travelled via Belarus to Poland where identification procedures were undertaken. The applicants said that the destination of their journey had always been Austria. The flight to Austria was a consequence of both applicants' illness as well as harassment from Chechen soldiers in Russia.
The Federal Asylum Agency rejected the applications for international protection as inadmissible on the basis that Poland was responsible for their asylum claims pursuant to Article 16(1)(c) of the Regulation (EC) no. 343/2003 (“the Dublin II Regulation”). The applicants were removed to Poland.
The Federal Asylum Agency determined that they neither suffered from physical or contagious illness, nor had severe mental health problems which would have led to an unreasonable deterioration of the physical conditions as a consequence of removal. Also the Agency ruled that the transfer of the applicants to Poland would not violate Article 8 ECHR. There was no danger of persecution or mistreatment nor was medical treatment in Poland insufficient. Furthermore, Poland had itself declared responsible pursuant to Article 16(1)(c) Dublin II-Regulation. The Federal Asylum Agency was also of the view that there existed no reasons to declare Austria competent for examining the application pursuant to Article 3(2) Dublin II-Regulation.
Decision & reasoning:
The Asylum Court upheld the Agency’s decision, and commented on two issues in particular: 1. The question regarding the competence/responsibility for examining applications for international protection; 2. The question whether the removal was admissible.
The Court noted that, pursuant to national law, an application which has not been finally decided is to be rejected as inadmissible if another state is responsible for the examining of applications for asylum under the Dublin II Regulation. The asylum authority must determine the Member State responsibleand connect the dismissal of the application with an expulsion.
The Court ruled that Poland was effectively responsible for examining the application because the applicant underwent identification procedures in Poland and lodged an application for asylum there (Article 10(1) Dublin II Regulation). There was also no evidence that the applicants had left the territories of Member States in the meantime.
It was also lawful that the Federal Asylum Agency did not declare itself responsible pursuant to Article 3(2) Dublin II Regulation. It was not required to imperatively declare itself competent in order to avoid a breach of the ECHR.
On the basis of the jurisprudence of the Austrian Administrative Court and the European Court for Human Rights, the Court noted that Member States need not to verify whether another Member State was basically safe, because such an assumption is made by adoption of the Dublin II Regulation. Yet, a an assessment of the risks to fundamental rights of a transfer is required in individual cases The Asylum Court named Greece as an example for which an individual check is required due to several decisions and regular reporting on the Greek asylum system. Although there was no such evidence reported for Poland, the Asylum Court nevertheless checked possible violations of Article 3 and 8 ECHR of Poland.
The Court noted that it is to be assumed that the applicant will find sufficient protection in the state competent, if no special (exceptional) reasons existed which would provide reasons for a real threat of lack of safety. These reasons must be either shown credibly by the applicants or be evident to the Federal Asylum Agency or the Asylum Court. Asylum authorities are obliged to make further necessary official checks in order to assess the possibilities of a "real risk". Concrete arguments against the Polish asylum system were not made in this case. The applicants’ criticisms made on the situation of third country nationals in Poland were not sufficient to systematically demonstrate inadequate or generally inhuman conditions.
that the Court also considered the rule that a transfer would be inadmissible if it would lead to a deterioration of the course of disease or the impossibility of a cure, and thereby violate Article 3 ECHR. Background information regarding possible treatment in the state of destination and an enhanced check of fitness to travel are required. The Court found that the illnesses of the applicants were also treatable in Poland. The medical attendance in Poland did not considerably differ from that in Austria.
In addition, Article 8 ECHR was not violated, because the applicants had only stayed in Austria for almost four months and had no family members or other relevant persons in Austria. In case of such a short stay period, it was to be assumed that there were no strong private ties in Austria which would constitute a relevant private life within the meaning of Article 8 ECHR.
As a result, the Asylum Court confirmed the view of the Federal Asylum Agency that there was no reason to oblige Austria to imperatively apply Article 3(2) Dublin II Regulation due to a threatened violation of Article 3 or 8 ECHR.
Outcome:
The applications were rejected. The decisions of the Federal Asylum Agency were confirmed, and the removal was found admissible.
Observations/comments:
The Asylum Court deals in detail with the responsibility for the examination of the application for international protection as well as with the requirements for assuming responsibility pursuant to Article 3(2) Dublin II Regulation.
This summary was provided courtesy of DLA Piper.
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| Austria - Constitutional Court, 17 June 2005, B 336/05 |
| 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 - Ndangoya v Sweden, Application No.17868/03 |
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