Austria - Asylum Court, 24 February 2011, A4 213316-0/2008
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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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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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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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
Headnote:
An Egyptian transgender woman, who first underwent gender reassignment surgery and hormone treatment in Austria, was recognised as a refugee as it was accepted that there were problems with the police, a refusal to issue her a passport using her new personal data and social issues of an intensity relevant to asylum matters.
Facts:
The Applicant travelled to Austria for study purposes as early as 1989, at that time with male gender features and identity documents. During her stay she underwent gender reassignment operations, was treated with hormones and from then on lived as a woman in Austria.
Already in Egypt the Applicant had often lived out her sexual orientation, which often led her to suffer police assaults and social discrimination.
An attempt to extend the Egyptian passport at the Embassy or to have it changed to female identity, failed. The Applicant was informed that she would have to travel to Egypt in person in order to change her civil status and the documents.
As the Applicant knew several transgender persons who had disappeared during such attempts, she feared she would suffer the same fate and applied for asylum in Austria in 1997.
After passing through all the appellate courts several times (see comments section regarding the highest court decisions on these proceedings), the proceedings finally resulted in the granting of asylum by the Asylum Court.
The information provided by the Applicant on her gender identity had been assessed as credible since the proceedings in the court of first instance, which is why a hearing before the Asylum Court was waived in the final analysis.
Decision & reasoning:
Transsexuality is hardly accepted in Egyptian society and often regarded as a perversion and sin by people with religious or traditional views. Police or official protection against attacks on the Appellant by private individuals owing to her transsexuality is not to be expected in light of the social order. In Egypt it is not possible to obtain other documents on the basis of a change of gender and which correspond to the changed gender.
The Applicant was not only rejected by most people in Egypt owing to her transsexuality, but there were also quite manifest attacks on her personal space and it also to be expected that these would be repeated if she returned to Egypt.
Lastly, in Egypt there is also not the (legal) option of arranging for documents to be changed after a successful gender reassignment and in future to live officially with a different gender. After any gender reassignment operation carried out abroad it would not be possible to subsequently enter Egypt.
Even if it is conceded that some people reject transsexuality in Austrian society, this rejection is however much less strong than in Egypt. As a result it would be very possible for the Appellant to live in Austria with a new name and the entry of the "female" gender in her documents without public disapproval, which the latter is seeking to do.
Outcome:
The appeal was upheld and the Applicant was granted refugee status.
Observations/comments:
Earlier decisions regarding these proceedings:
- Federal Ministry of the Interior (BMI) 30.09.1997, 4.352.345/1-III/13/97
- Administrative Court (VwGH) 08.09.1999, 98/01/0116
- Independent Federal Asylum Senate (UBAS) 22.04.2003, 213.316/0-V/14/99
- VwGH 21.09.2004, 2003/01/0435
Further decision regarding transgender persons:
- UBAS 24.10.2002, 215.214/0-VIII/22/02 (Iraq)
- UBAS 10.05.2004, 240.479/0-VIII/22/03 (Georgia)
- UBAS 28.03.2006, 244.745/0-VIII/22/03 (Iran)
- Asylum Court (AsylGH) 28.12.2009, S13 409.528-1/2009 (Ecuador; Dublin Regulation Germany)
- AsylGH 29.01.2013, E1 432.053-1/2013 (Pakistan)
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Austria - Independent Federal Asylum Senate (UBAS), 24 October 2002, 215.214/42-VIII/22/02 |
| Austria - Administrative Court, 11 June 2002, 98/01/0394 |
| Austria - Administrative Court, 27 June 1995, 94/20/0836 |
Other sources:
Home Office, July 2008: Lesbian, Gay, Bisexual and Transsexual Persons / People who are infected with HIV/AIDS
Internet reports: "About Transgender Egypt, 2005-2008"
Amnesty International Germany, Asylum reports, 29.07.2005
Grahl-Madsen: The Status of Refugees in International Law I, 1966
Kälin: Grundriss des Asylverfahrens (Outline of the asylum procedure), 1990
"Common position" of the Council of the European Union of 4 March 1996 regarding the harmonised application of the definition of the term "refugee" in Art. 1 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees