Austria – Federal Administrative Court, 24. August 2015, W149 1433213-1/29E
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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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. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, 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, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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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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. |
Headnote:
If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.
In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court.
Facts:
The appellant lodged an application for international protection with the competent border authority at the airport in Vienna in 2011.
During the following administrative procedures the applicant was repeatedly questioned in writing and produced several pieces of evidence regarding his state of health, the situation in Somalia as well as his knowledge of German. Furthermore, he was invited on several occasions to comment on the country of origin information regarding Somalia, which formed the basis of the later decision of the Federal Office of Asylum, as well as on specific issues, like the accessibility of treatment for diabetes mellitus in Somalia.
The Federal Office of Asylum rejected his application with regard to granting refugee as well as subsidiary protection status and ordered his expulsion to Somalia.
The applicant appealed this decision. He claimed that the consideration of evidence by the Federal Office was incorrect and inadequate. In the oral hearing he also claimed, that his assigned legal adviser neither advised him on how to formulate his complaint nor did he accompany him to the oral hearing.
Decision & reasoning:
Firstly, the Federal Administrative Court held that in the present case an oral hearing could not be waived according to § 21 (7) of the Federal Act on the general rules for procedures at the Federal Office for Immigration and Asylum, solely because the appellant provided substantiated reasons that call into question the consideration of evidence in the administrative proceedings. Therefore the facts could not be regarded as “well established on basis of the records in combination with the complaint”. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.
Furthermore, the initial consideration of some issues (e.g. internal protection alternative, ability of the state to protect) requires that the right to be heard is granted. Finally, the oral hearing may not be replaced by giving the applicant the possibility to comment in writing on country of origin information during the complaint procedure.
Concerning the submission of the appellant which underlined that the legal representative was absent, the Court did regard it as credible, in spite of an explicit request by the appellant. However, in the opinion of the court this did not constitute a grave violation of procedural rules. On the one hand, not accompanying the appellant during the judicial proceedings could not be regarded as a violation of the procedural rules by the opposing administrative authority. On the other hand, § 52 (2) of the Federal Act on the general rules for procedures at the Federal Office for Immigration and Asylum does not prescribe any legal consequences for such failure to act, in particular not with regards to oral hearings or judicial proceedings as such. In this context, the only legal consequence that is provided for can be found in § 48(9) of said law which lays down that in case of a repeated and insistent breach of duties by a single legal entity the federal minister can annul its authorisation. Moreover, such legal consequence can also not be derived from European Union law since the national provision goes beyond what is required by Art. 20 (1) of Directive 2013/32/EU.
For the rest, the court found that on the basis of the facts that have been established in the judicial proceedings there was no well-founded fear of persecution within the meaning of Art. 1 A of the 1951 Refugee Convention. In the same vein, there was also no real risk of a violation of Art. 2 ECHR or Art. 3 ECHR or Protocol No. 6 or Protocol No. 13 to the Convention or a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict that would warrant the granting of subsidiary protection. Therefore, the appeal was unfounded in this regard.
The Federal Administrative Court based these findings on a detailed analysis of the submission of the appellant in the oral hearing and the country of origin information with regard to the general situation in Somalia, the security and human rights situation, (ethnical) minority and clan structures, freedom of movement, internally displaced persons, basic supply and economy, medical care and the possibility of return as well as the medical reports and the further evidence presented.
Additionally, the Court held that the return of the appellant would not be permanently inadmissible on the basis of Art. 8 ECHR since he did not have a family life in Austria and any further interference with his right to private life would be justified by a weighing of the interests concerned in accordance with Art 8(2) ECHR. Therefore, the decision on the lawfulness of a return decision was referred back to the Foreign Office for Asylum.
Finally, the court declared that an ordinary appeal against its decision would be admissible in accordance with Art. 133 (4) of the Federal Constitutional Law. This is due to the fact that the interpretation of the newly adopted § 52 (2) of the Federal Act on the general rules for procedures at the federal office for immigration and asylum with regard to the legal consequences of the unfounded absence of a legal representative in the oral hearing of the Federal Administrative Court, in spite of an explicit request by the appellant, in proceedings concerning international protection was still unclear. Due to the lack of explicitly specified legal consequences it could not be excluded that such breach could, contrary to the view of the deciding chamber, have legal implications for the proceedings. Since this question involved a legal issue of fundamental importance for all proceedings concerning international protection further clarification from the Supreme Administrative Court was needed.
Outcome:
The appeal was dismissed as unfounded with regards to the non-recognition as a refugee and as a subsidiary protection beneficiary.
Concerning the lawfulness of a return decision the case was referred back to the Federal Office of Asylum.
An ordinary appeal against the decision was declared as admissible.
Observations/comments:
This case summary was written by Ann-Christin Bölter, LLM student in Immigration Law at Queen Mary University, London.
The summary was proof read by Ana-Maria Bucataru, an LLM student in Immigration Law at Queen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Omoregie and others v Norway, Application No. 265/07 |
| ECtHR - Boultif v Switzerland, Application No. 54273/00 |
| ECtHR - Marckx v Belgium, 13 June 1979, § 41, Series A No. 31 |
| ECtHR - Konstantinov v The Netherlands, Application No. 50435/99 |
| ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| ECtHR - Sisojeva and Others v. Latvia [GC], Application No. 60654/00 |
| ECtHR - Adam v Germany, Application No. 43359/98 |
| ECtHR - Moustaquim v. Belgium, Application No. 12313/86 |
| ECtHR - Maslov v. Austria ([GC], no 1638/03 |
| ECtHR - Mitchell v United Kingdom, App No 40447/98, 24 November 1998 |
| Yilmaz Yildiz v. Turkey, 31 October 2002, No. 37.295/97 |
| ECtHR - Sarumi v. UK, 26 January 1999, No. 43.279/98 |
| ECtHR - Sheabashov v. Lithuania, Judgement of 22 May 1999, No. 50065/99 |
| ECtHR - Cherif and others v. Italy, 07 April 2009, No. 1860/07 |
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