Austria - Asylum Court (AsylGH), 10 March 2011, A5 417.766-1/2011
Keywords:
| Keywords |
|
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. |
|
Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
|
Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
|
Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
|
Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
|
Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
Insofaras the Federal Asylum Agency did not apply an age-appropriate standard when assessing the credibility of the minor Applicant and did not comply with the particular obligation to provide instruction and the duty of care applicable in the case of a minor, the authority committed a gross procedural error.
Facts:
The unaccompanied minor Appellant lodged an application for international protection in Austria on 12.9.2010.
She stated that her reason for fleeing was that she had been forced to marry by an Islamic group. She submitted a birth and marriage certificate amongst other things. It was also alleged that she had been in a forbidden relationship with a young man. Her mother's business had been destroyed by rebels whilst the rebels were alleged to have been looking for her.
A medical report drawn up on the instructions of the Federal Asylum Agency confirmed the submission of the Applicant that she was 16 years old.
The Federal Asylum Agency found that the reasons for fleeing which were put forward lacked credibility due to contradictions in the arguments and implausibility and therefore rejected the application for international protection with regard to asylum. Due to the civil war in Somalia, the Federal Asylum Agency granted the Applicant subsidiary protection status.
The Applicant lodged an appeal with the Asylum Court against the refusal to grant asylum (represented by the youth welfare services). The grant of subsidiary protection was not challenged.
Decision & reasoning:
Although the Federal Asylum Agency did not dispute that the Applicant was a minor, the authority did not however apply a corresponding standard as part of the consideration of evidence and when assessing credibility, and did not sufficiently appreciate her status as a minor. In proceedings concerning minors, the responsible authority has a particular obligation to provide instruction and a duty of care. However, in this case the Federal Asylum Agency did not comply with the latter, because as part of the hearing it had neither asked precise questions nor objected to any contradictions. The Federal Asylum Agency had, on the contrary, determined that the Applicant lacked credibility across the board and in doing so based itself chiefly on differences with regard to the chronology of the events described.
The Federal Asylum Agency had therefore refrained entirely from verifying the copies of the documents submitted by the Applicant or to deal with them as evidence – including in respect of the forced marriage.
The Asylum Court therefore came to the conclusion that the Federal Asylum Agency had made a serious procedural error by not granting asylum, and had breached its obligation to carry out a proper investigation and a comprehensive assessment of the individual arguments.
Outcome:
The appeal was upheld and the contested part of the decision regarding the granting of refugee status was referred back to the Federal Asylum Agency for further proceedings and the issuance of a new notification.
Subsequent proceedings:
Asylum Court (AsylGH) 16.10.2012, A5 417766-2/2012: a second notification by the Federal Asylum Agency in this matter was cancelled with this decision owing to another serious procedural error and referred back to the Federal Asylum Agency for further proceedings and the issuance of a new notification.
Observations/comments:
Similarly:
AsylGH 11.08.2010, A5 411235-1/2010
AsylGH 05.09.2011, A5 411235-1/2010
AsylGH 25.07.2011, A6 414161-2/2011
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Austria - VfSlg. 15.451/1999, 15.743/2000, 16.354/2001, 16.383/2001 |