Austria – Verwaltungsgerichtshof (VwGH - Higher Administrative Court), 06/27/2017, Ra 2017/18/0118
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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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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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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.” |
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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. |
Headnote:
In case of reasonable doubt, the statement of the applicant for asylum about his or her date of birth has to be viewed as a credible statement.
Facts:
A Gambian citizen applied for asylum in Austria on July 29th 2016. During the subsequent interview he stated his date of birth (DOB) to be February 2nd 2000 and therefore legally still underage. Nevertheless he was processed as legally of age by the Federal Office of Foreign Entities and Asylum (BFA), relying on the fact, that the applicant had been treated as legally of age during former asylum application procedures in Norway and Italy. Finally the BFA dismissed the application reasoning that the application was inadmissible.
The appeal filed by the applicant before the Federal Administrative Court (BVwG) was granted on the basis of Sec. 21 BFA-VG (BFA Procedural Act), stating that the application process conducted by aforementioned agency was flawed. The BFA’s appeal on points of law before the VwGH (Higher Administrative Court) was dismissed.
Decision & reasoning:
The BVwG stated that there was reasonable doubt that the applicant had been of legal age the moment he had applied for asylum.
During the entire proceedings the applicant had consistently stated his DOB to be February 2nd 2000 and therefore legally underage. The stated DOB could even be found on his filed Gambian birth certificate - which during an ordered examination was declared to be a likely authentic document.
Furthermore the responsible Italian and Norwegian authorities both lacked an explanation for their respective choices to treat the applicant as of age. The applicant’s statement regarding the faulty procedures leading to a false estimation of his age during his former asylum applications could therefore not be contested. And while the multifactorial medical examination ordered by the BFA estimated that the applicants age at the time he was examined was 18.44 years, the medical report also explicitly stated, that an age of 17.04 years at the moment of application in Austria was possible as well. The court found that these facts warranted reasonable doubt that the applicant was legally of age at the moment of application. Consequently the court found that on the basis of Sec. 13 BFA-VG (BFA procedural act) the applicant had to be treated as legally underage.
Outcome:
Appeal is dismissed.
Observations/comments:
This case summary was written by Lusalla Nzanza, undergrad student at Cologne University .