Austria - Asylum Court, 21 November 2011, C2 419963-2/2012
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Asylum Court |
| Date of decision: | 21-11-2011 |
| Citation: | AsylGH 21.11.2011, C2 419963-2/2012 |
Keywords:
| Keywords |
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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 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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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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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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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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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
Headnote:
The Applicant fled to Austria to be with her husband. She pleaded no reasons for fleeing such as problems of living as a woman in Afghanistan and the Federal Asylum Agency also made no investigations into this aspect. Only in the appeal were specific women’s issues raised. The Asylum Court decided that the Federal Asylum Agency was obliged to undertake the appropriate investigations under apparent theoretical circumstances relevant to asylum (such as gender), even if the party did not initiate such a submission.
Facts:
The Applicant originating from Afghanistan lodged an application for international protection on 09.03.2011. In the initial interview she stated that she had no reasons of her own for fleeing and had wished to make an application in family proceedings with regard to her husband. She had never had any problems with state agencies or suffered any other persecution. Problems of being a woman, such as restrictions on personal freedom of movement, were not mentioned. The Federal Asylum Agency refused the application for asylum, recognised subsidiary protection status for the Applicant (and her husband and children). In the grounds for this decision the Federal Asylum Agency stated that the Applicant had travelled to Austria because her husband was here. Owing to the decision in the proceedings of the husband, she should have been granted subsidiary protection status. There were only sporadic references to the situation of women in Afghanistan in the decision.
The Applicant lodged an appeal against the fact that asylum had not been granted. In this she pleaded, amongst other things, that she was at risk of gender specific persecution in Afghanistan owing to the risk of a forced marriage or persecution owing to her Western attitudes. There were also no reports on the situation of women in Afghanistan in the findings made by the authorities. The Applicant had used the freedoms she had enjoyed since her arrival in Austria to a large extent and led an independent and emancipated life from an Afghan perspective. She planned to attend a German course and schooling. She had therefore clearly become accustomed to a Western lifestyle, which was relevant to asylum. The Federal Asylum Agency had grossly breached the official obligations to investigate.
Decision & reasoning:
In its findings the Asylum Court stated that in accordance with the Asylum Act 2005, the Federal Asylum Agency has an official obligation to determine the facts of the case relevant to the decision. If circumstances are apparent that suggest recognition of refugee status, these are also to be researched officially, even if no submission at the initiative of the party is raised in this respect. This is because a submission could in particular be omitted because the relevant party is not aware of the relevance of the omitted submission. This is why the relevant circumstances might need to be clarified by imaginative questioning. In order to be able to reject an application for asylum, reference to a lack of statements by the Applicant on an apparent obvious circumstance, which might be grounds for recognition of asylum, is not sufficient.
In addition, the Federal Asylum Agency is also required to observe the established case law of the Asylum Court. According to the case law of the Asylum Court, Afghan women are in any case at risk of persecution relevant to asylum if the latter are Westernised or there is a real risk of a forced marriage. The same direction is also followed by the case law of the Administrative Court and the European Court of Human Rights in the judgment of 20.07.2010 in N. v. Sweden.
Overall the Federal Asylum Agency should officially clarify in all proceedings regarding applications by Afghan women and girls whether the relevant Applicant is threatened with a forced marriage; this is a particular risk for unmarried women, but also women who have been violated or entered into a scandalous marriage or one that was not approved of by the family. Furthermore, with regard to the special situation of Afghan women and girls – regardless of their family status – the following should always be clarified officially:
· “What were the living arrangements of the Applicant in Afghanistan (above all did she live with her parents or her parents-in-law) and how was she treated by the “head of the household” (this does not necessarily mean her husband)?
· Does the Applicant express a sufficiently clearly articulated desire to start schooling or a job or has she already started such?
· Is the marriage of the Applicant sound or has she already unmistakably articulated a desire to separate and already undertaken corresponding legal steps?
· Is the Applicant Westernised?”
With regard to the case in point, the Asylum Court continued that the submission by the Applicant in the appeal that she risks a forced marriage in Afghanistan is not covered by the ban on new evidence in Article 40 Asylum Act 2005 as the Federal Asylum Agency has not complied with its obligation to officially investigate the material truth.
Furthermore the Asylum Court set out the circumstances under which the Applicant should actually have been questioned by the Federal Asylum Agency. The Federal Asylum Agency is also required to determine to what extent the new rights acquired by the Applicant in Austria have already become a major component of her identity, so that suppression of these would equate to persecution relevant to asylum. With regard to the question of the existence of a “Western attitude” and its internalisation, consideration should be taken of the length of time spent abroad in the West and becoming accustomed to a Western life style.
Outcome:
The disputed decision was revoked and the matter was referred back to the Federal Asylum Agency to obtain further findings and issue a new decision.
Subsequent proceedings:
Asylum Court (AsylGH) 30.07.2012, C2 419.963:the appeal was finally refused as unfounded owing to a lack of submissions relevant to asylum in accordance with Section 3 Asylum Act 2005, with the grounds that the Applicant corresponds to the traditional Afghan image of a woman and she would therefore not have to refrain from living out internalised values or she would not be at risk of persecution from living out such values.
Observations/comments:
The case law of the Asylum Court is partly inconsistent, in particular with regard to Afghan women with a “Western attitude” that was not recognisable from external appearances. Neither the Asylum Court itself nor the Federal Asylum Agency adhere here (continuously) to the requirements formulated in this finding.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - N. v Sweden, 20 July 2010, no. 23505/09 |
Other sources:
UNHCR Position on Afghan asylum seekers, July 2003
Human Rights Watch: World Report 2011, January 2011
Department of Foreign Affairs, Report on the situation relevant to asylum and deportation in the Islamic Republic of Afghanistan, February 2011
Home Office, UK Border Agency, Operational Guidance Note Afghanistan, March 2011
U.S. Department of State, 2010 Human Rights Report: Afghanistan, April 2011
Freedom House, Freedom in the World, Afghanistan 2011
Amnesty International, Amnesty Report 2011
International Religious Freedom Report 2010, November 2010