Austria – Supreme Administrative Court, 08 September 2015, Ra 2015/18/0113
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Administrative Court of Austria |
| Date of decision: | 08-09-2015 |
| Citation: | Ra 2015/18/0113 |
Keywords:
| Keywords |
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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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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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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. |
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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. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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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." |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively) when examining a Dublin transfer. A possible breach can be linked to personal circumstances of the asylum seeker and does not necessarily have to be caused by a systemic failure of the asylum system in the receiving country. A Dublin transfer is forbidden if there is a real risk of a breach of Art. 3 ECHR.
A single mother and her five minor children must be considered as particularly vulnerable and cannot be transferred from Austria to Hungary.
Facts:
The applicants are a single mother and her five minor children and the husband of the oldest daughter from Afghanistan. They had travelled from Iran via Turkey to Greece, continued through Macedonia and Serbia before illegally entering Hungary, where they applied for international protection in September 2014.
They did not wait for the outcome of the Hungarian asylum procedure but moved on to Austria and filed another asylum request there in October 2014. In March 2015 the Austrian Asylum Authority (Bundesamt für Fremdenwesen und Asyl, BFA) rejected their application as inadmissible since Hungary was competent according to Art. 18 I lit. b Dublin-III-Regulation. The BFA thus ordered the transfer of the family to Hungary. The Hungarian authorities accepted the request to take back the applicants according to the Dublin regulation.
The applicants filed a complaint against the transfer decision to the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) which was not successful. In the legal reasoning the BVwG stated that there were no particular reasons supporting a real risk of persecution of the applicants in Hungary. The applicants do not suffer from a life-threatening disease and they have neither family nor other close personal relationships in Austria. Although minors, the children are not infants anymore that need special care. Regarding the situation of asylum seekers in Hungary the BVwG consulted sources not later than from summer 2014. Only concerning the prison conditions, it took a more recent report from March 2015 into account. Based on these reports the court stated that Dublin-returnees are normally not accommodated in overcrowded reception camps, they receive necessary medical care in conformity with European standards. It pointed out that the ECtHR decided in the case Mohammadi/Austria that there is no systemic failure of the Hungarian asylum system. A Dublin transfer to Hungary therefore does not constitute an inhuman treatment contrary to Art. 3 ECHR. Austria is thus not required to exercise the sovereignty clause of Art. 17 I Dublin-III-Regulation.
The applicants filed an appeal against the decision of the BVwG at the Supreme Administrative Court (Verwaltungsgerichtshof, VwGH). They reasoned that they had to be considered as particularly vulnerable persons due to several diseases they suffered from. They also claimed that there were several legal questions of fundamental significance at stake since the BVwG had differed from settled case law of the VwGH. Turning to the situation in Hungary, they relied on a recent report of EASO stating that asylum seekers would not receive food, accommodation and medical care and that Dublin returnees are systematically imprisoned, which leads to an additional breach of Art. 6 EUCFR.
Decision & reasoning:
The complaint at the Supreme Administrative Court was successful.
The ECHR is classified at the same level as the constitution in Austria. This means that the current Austrian Asylum Law (AsylG 2005) has to be interpreted according to the provisions of the ECHR. If there are substantial grounds for a real risk of a breach of Art. 3 ECHR Austrian asylum authorities are required to make use of the sovereignty clause of Art. 17 I Dublin-III-Regulation and examine the asylum request themselves.
§ 5 III AsylG 2005 contains a legal presumption that all states participating in the Dublin system can be considered as safe states. This presumption is rebuttable if there are particular reasons that suggest that the asylum seeker has to fear a real risk of lacking protection against persecution in the receiving state.
Basically, the applicant has to prove that there are such particular reasons. Only if the claimed reasons are obvious (“offenkundig”), no prove is needed. The applicant has to provide sufficiently specific information in order to support his claim. But the authority also has to consider the special situation of asylum seekers, that often have no means to gather evidence.
According to the case law of the CJEU there is a presumption that asylum seekers are treated in conformity with the CFREU, the Geneva Convention on Refugees (GCR) and the ECHR in every Member State. This presumption is rebuttable, if there are systemic flaws in the asylum system of the receiving state that lead to a breach of Art. 4 CFREU (which corresponds with Art. 3 ECHR).
According to the UK Supreme Court and the ECHR in the case of Tarakhel the reason for a real risk of a breach of Art. 3 ECHR is irrelevant, also individual circumstances of the applicant can be considered.
The VwGH concludes from this case law that the Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively). If there is a real risk of such a violation, a Dublin transfer is prohibited. This ensues from the absolute nature of Art. 3 ECHR (or Art. 4 CFREU respectively) and the Austrian obligation to respect fundamental rights.
The case Mohammadi/Austria of the ECtHR shows that there are no systematic detentions of asylum seekers in Hungary anymore and that prison conditions have improved. In this case the ECtHR decided that a Dublin transfer of a single young man from Austria to Hungary does not constitute a breach of Art. 3 ECHR.
The VwGH stated that the BVwG failed to examine if the reasoning in Mohammadi v. Austria (71932/12) was comparable to the present case, despite being obliged to do so in the previous instance.
The applicants in the present case are a single mother and her minor children that have to be considered as particularly vulnerable. Whereas their claimed diseases intensify the vulnerability, taken alone, they are not sufficiently severe in order to justify a particular vulnerability.
The past experiences of the applicants in the receiving state can only be considered as an indication of the future treatment there. The treatment the applicants could possibly face in the receiving state has to be drawn from recent reports about this state and from the individual circumstances of the persons concerned. The BVwG did not use the most current reports and did not adequately consider the situation of the applicants.
Outcome:
Appeal granted.
Observations/comments:
The question of whether only systemic flaws in the asylum system of the receiving country are relevant or if the individual situation of the applicant should also be considered while examining a Dublin transfer, is highly controversial. Referring to the judgements of the CJEU, German Administrative Courts only consider systemic flaws in the asylum system of the receiving state to prohibit Dublin transfers to that country. In order to ensure a comprehensive protection of human rights and respect the judgements of the ECtHR, one should – like the Austrian Supreme Administrative Court in the present case – also consider the individual situation of the applicant as a mean to prevent Dublin transfers.
This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| 47ff. VwGG |
| Austria – § 5 Asylgesetz 2005 (Asylum law 2005) |
| Austria - §§ 42 II |
Cited Cases:
Other sources:
Domestic Case Law Cited
Austria – VfGH, 15.10.2004, G 237/03
Austria – VwGH, 23.01.2007, 2006/01/0949
Austria – VwGH, 12.12.2007, 2006/19/1022
Austria – VwGH, 26.05.2009, 2006/20/0237
Austria – VwGH, 10.12.2009, 2008/19/0809
Austria – VwGH, 19.05.2010, 2008/23/0413
Austria – VwGH, 21.06.2010, 2008/19/0163
Other Member States' Case Law
United Kingdom - Supreme Court, 19.02.2014, R vs. Secretary of State for the Home Department (2014) UKSC 12
Germany – Bundesverwaltungsgerichtes, 19.03.2014, 10 B 6.14
Germany – Bundesverwaltungsgericht, 06.06.2014, 10 B 35.14
Germany – Bundesverwaltungsgericht, 14.07.2014, 1 B 9.14
Other Sources
Hailbronner/Thym, Vertrauen im europäischen Asylsystem, NVwZ 2012, 406ff.
Marx, Solidarität im grundrechtskonformen europäischen Asylsystem, NVwZ 2012, 409ff.
Bank/Hruschka, Die EuGH-Entscheidung zu Überstellungen nach Griechenland und ihre Folgen für Dublin-Verfahren (nicht nur) in Deutschland, ZAR 2012, 182ff.
Thym, Zulässigkeit von Dublin-Überstellungen nach Italien, ZAR 2013, 331ff.
Lübbe, "Systemische Mängel" in Dublin-Verfahren, ZAR 2014, 105ff.
Bergmann, Das Dublin-Asylsystem, ZAR 2015, 81ff.