Austria - Asylum Court, 29 January 2013, E1 432053-1/2013
Keywords:
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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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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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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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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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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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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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:
Refugee status was recognised for a transgender woman from Pakistan because discrimination for reasons relevant to asylum as well as involuntary prostitution to earn a living are sufficiently serious to represent persecution within the meaning of the Geneva Convention relating to the Status of Refugees.
Facts:
In 2012 the Applicant applied for international protection in Austria. She stated that she had left Pakistan because she was a so-called "Hijra". She had been born a boy, but had had "tendencies to be a woman" since the age of nine, which is why she was disowned by her family at the age of eleven. She had since been living in various locations, where she worked as a dancer and prostitute together with other transgender persons, as she had no other means of earning a living. She was discriminated against, abused, insulted, shunned and laughed at. The police had repeatedly come into her accommodation and taken her money. The situation deteriorated even further after she married another transgender woman with whom she was acquainted, as this became public knowledge and is forbidden by the Pashtuns. A transgender woman friend had been killed by the Taliban as a result. In order to escape all of this and in fear of her life, which was worthless in Pakistan, she had finally left the country.
The Applicant had not undergone any sex reassignment surgery. Owing to her external appearance and way of life as a woman she had been treated as a woman in the asylum proceedings, with which the Applicant stated that she was in agreement.
The Federal Asylum Agency awarded her the status of a person entitled to subsidiary protection and granted her a limited residence permit for one year. The reasons for the decision were that although the claims were credible and were in principle to be subsumed under a Convention ground (social group), the discrimination was notintensive or systematic which is a condition for granting Convention status. This is so above all against the background of the country findings from which it emerged that, although homosexuality and transsexualism are not officially accepted by society, they are tolerated privately. Although there is criminal liability for proven so-called "unnatural sexual intercourse", this provision is however never applied. In addition, transgender persons are entitled to their own gender attribution ("Hijra") from the state (in an extremely modern and liberal approach, which even exceeds the regulations in European countries) and so this criminal sanction can never be applied. In November and December 2009 the Constitutional Court had strengthened the legal position of transgender persons, including in the field of inheritance and employment law, through corresponding directives to the Government. Other directives to the Federal and Provincial Governments had concerned protection against persecution and the right of access to free health care and education.
Owing to her personal circumstances, namely rejection by her family and her previous occupation, a return to Pakistan would nevertheless not be reasonable. As only involuntary prostitution was open to her, which represented an intensive intrusion into her physical (and emotional) integrity, the equivalent of serious and substantial, intensive and unreasonabe degrading treatment, the subsidiary protection status was recognised.
The Applicant lodged an appeal at the Asylum Court against the refusal to grant refugee status.
Decision & reasoning:
The Asylum Court waived holding a hearing as the material facts of the case had already been determined by the Federal Asylum Agency.
The Asylum Court stated with reference to the country reports that the discrimination reported by the Applicant represented grounds for asylum. In the disputed decision the Federal Asylum Agency had stated that involuntary prostitution would be the only opportunity for her to earn a living and this represented a violation of Article 3 ECHR. Disadvantages in a social, economic or religious sphere can be sufficient for an affirmation of refugee status, insofar as they are for reasons relevant to asylum, if they reach such an intensity that it becomes unbearable for the asylum seeker to remain in his home country.
These conditions exist in this case, which is why refugee status should have been recognised.
Outcome:
The appeal was granted and the Applicant's refugee status was recognised.
Observations/comments:
Other decisions regarding transgender persons:
- Independent Federal Asylum Senate (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 24.02.2011, A4 213.316-0/2008 (Egypt)
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Swiss Refugee Council, Pakistan: Situation of Hijras, information from country analysis of 14.05.2012
Department for Foreign Affairs: report on asylum and deportation situation in the Islamic Republic of Pakistan, status: June 2011
Human Rights Commission of Pakistan: State of Human Rights in 2011, March 2012
Department for Foreign Affairs: Pakistan – Internal policies, status: March 2012
Pak Institute for Peace Studies: Pakistan Security Report 2011, 4.1.2012
Swiss Refugee Council (SFH): Information from the SFH – country analysis, Pakistan: justice system and conditions of detention, 5.5.2010
United States Department of State: Country Report on Human Rights Practices 2011, 24.5.2012
US Department of State: Country Report on Human Rights Practices 2010, 8.4.2011
Human Rights Watch: World Report 2012, 22.1.2012