Austria – Federal Administrative Court, 27 August 2015, W125 2111611-1
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Federal Administrative Court (Bundesverwaltungsgericht) |
| Date of decision: | 27-08-2015 |
| Citation: | W125 2111611-1 |
| Additional citation: | ECLI:AT:BVWG:2015:W125.2111611.1.01 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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.” |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The Austrian asylum authorities have to consider accurately and comprehensively the changes in the legal situation and the development of the actual situation of asylum seekers in Hungary when deciding on a Dublin transfer to this country.
Facts:
The applicant is a young man from Afghanistan who fled his country of origin because he was accused of killing a person by family members of the deceased and feared their revenge. He had travelled from Iran via Turkey to Greece, on to Macedonia and Serbia, entering Hungary, where he applied for international protection on 21 April 2015. Because of ill-treatment by the Hungarian Police and the bad conditions of the local refugee accommodations he did not wait for the outcome of the Hungarian asylum procedure but moved on after a few days and illegally entered Austria, where he filed another asylum request on 27 April 2015.
In July 2015 the Austrian Asylum Authority (Bundesamt für Fremdenwesen und Asyl, BFA) rejected his application as inadmissible pursuant to § 5 I Asylum Act since Hungary was competent according to Art. 18 I lit. b Dublin-III-Regulation. According to the decision, the applicant did not suffer from any disease that could prevent a transfer to Hungary. The situation for asylum seekers and Dublin returnees in Hungary was supposed to be adequate, not leading to a violation of Art. 3 ECHR. The BFA thus ordered the transfer of the applicant to Hungary (§ 61 Aliens Police Act). The Hungarian authorities accepted the request to take back the applicant under the Dublin regulation.
The applicant filed a complaint against the transfer decision to the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) end of July 2015.
Decision & reasoning:
The complaint at the Federal Administrative Court was successful: The decision of the BFA was annulled, requiring the asylum authorities to conduct the applicants’ asylum procedure in Austria.
The court found that Hungary was competent for the asylum procedure of the applicant according to Art. 18 I lit. b Dublin-III-Regulation. However, the situation for asylum seekers in Hungary may violate the ECHR as well as the CFREU. This poses increased demands on the asylum authorities to comprehensively clarify and justify their decision (“erhöhter Abklärungs- und Begründungsbedarf”). The BFA failed to do this: Their decision did not accurately and comprehensively examine the changed legal situation in Hungary and its impact on the applicant. It especially did not evaluate a threatening deportation of the applicant to Serbia and the possibilities of adequate legal remedies in Hungary against such an expulsion. Pursuant to the new Hungarian regulation on save countries of origin and save third countries of 1st August 2015, the applicant risks being brought back to Serbia. Following recent reports, Serbia however cannot be considered a safe third country.
The Federal Administrative Court found that the new asylum law situation in Hungary is at least partly problematic and potentially not compatible with international requirements on asylum systems and asylum procedures in accordance with the rule of law. Therefore, the legal presumption contained in § 5 III Asylum Act, that all states participating in the Dublin system can be considered as safe states, can only be applied if the asylum authorities examine comprehensively, how the person deported from Austria to Hungary will be treated there. The BFA did not meet this requirement in the present case. It also did not sufficiently deal with the applicants’ allegations of ill-treatment by the Hungarian police in its decision.
Outcome:
Appeal granted.
Observations/comments:
This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University and member of the research group of the Refugee Law Clinic Cologne.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-394/12, Shamso Abdullahi v Bundesasylamt |
| CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland |
Other sources:
Domestic Case Law Cited
Austria – AsylGH, 06.03.2012, GZ S1 422.134-2/2012/13E
Austria – AsylGH, 23.11.2012, GZ S1 416.449-3/2012/10E
Austria – AsylGH, 26.7.2013, S1 434994-1/2013
Austria – Bundesverwaltungsgericht, 30.07.2015, W205 2111354-1/4E
Austria – Verfassungsgerichtshof, 14.11.2007, 2005/20/0473
Austria – Verfassungsgerichtshof, 11.11.2008, 2007/19/0279
Austria – Verfassungsgerichtshof, 16.06.2014, U2543/2013
Austria – Verfassungsgerichtshof, 25.06.2014, U 2679/2013
Other Member States' Domestic Case Law cited
France – Conseil d'Etat, 29.08.2013, 37152
Germany – Verwaltungsgericht Köln, 15.07.2015, 3 K 2005/15.A
Switzerland – Bundesverwaltungsgericht, 09.10.2013, E-2093/2012
Other Sources cited
UNHCR, Serbia as a country of asylum, August 2012
USDOS – US Department of State: Country Report on Human Rights Practices 2014 – Serbia, 25.06.2015