Austria – Higher Administrative Court, 13.12.2018, Ra 2018/18/0533
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Higher Administrative Court (Verwaltungsgerichtshof Wien, VwGH) judges: Dr.in Sporrer, Hofrätin Mag. Dr. Maurer-Kober, Hofrat Dr. Sutter and Hofräting MMag. Ginthör |
| Date of decision: | 13-12-2018 |
| Citation: | VwGH, Ra 2018/18/0533 |
Keywords:
| 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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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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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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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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
Headnote:
The applicants’ personal circumstances and the general conditions in the country of origin have to be taken into account, when assessing whether an internal flight alternative exists. Relevant sources like the UNHCR guidelines have to be used. Otherwise this constitutes a significant procedural error.
Facts:
The claimant is Afghan citizen and belongs to the ethnic group of Hazara. On 9 June 2015 he filed for subsidiary protection in Austria due to the insecurity and absence of human rights protection in Iran, where he was born and raised. Going back to Afghanistan was impossible for the claimant, since he does not know the customs and a lot of the members of his ethnic group got killed in the war.
The Federal Asylum Authority rejected the application on 8 September 2018. Also, the subsequent appeal was rejected by the Federal Administrative Court. The court based its decision on the personal circumstances. Being Shiite, healthy, unmarried and childless it is possible for him to go back to Afghanistan. Moreover, the court claims that he would be able to work there due to his knowledge of one of the countries’ official languages. Furthermore, the court claimed that he would probably receive financial support of his relatives that live in Iran. The court, moreover, claims that there is no threat of persecution and that the claimant additionally has internal flight alternatives, namely Kabul and Bakh. Assessing the situation in the country of origin, the court only bases its arguments on the assertions of the Federal Asylum Authority.
The claimant filed an appeal against this decision asserting that the court did not take the UNHCR guidelines or other relevant sources into consideration.
Decision & reasoning:
The Supreme Administrative court granted the appeal. The court reasoned that it is not possible for the appellant to go back to Afghanistan and that internal flight alternatives are not given. If such an alternative is given, has to be examined taking into account the applicant’s personal circumstances and the situation in the state of origin. In this respect the Supreme Administrative Court laid out special criteria in its jurisprudence.
The court asserts that the examination of the claimant’s personal situation was inadequate. The court restricts its argumentation to some specific facts, namely that the appellant is unmarried, childless and a Muslim whereas it does not take into account that he was born and grew up in Iran. Furthermore, the court does not sufficiently substantiate its claims that the appellant knows the customs and that he would be able to find a job due to its knowledge of one of the countries’ official languages. Moreover, the court failed to justify the assertion that a financial support by the appellant’s family would be probable.
Assessing the existence of internal flight alternatives the court also has to take the circumstances in the state of origin into account. In the present case the court did not consider the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan of 30 August 2018. However, this is necessary not only according to the Supreme Administrative Court’s jurisprudence but also viewing EU-Law (Art. 10 (3) lit. b of EU Directive 2013/32/EU and Art. 8 (2) of EU Directive 2011/95/EU concerning the assessment of internal flight alternatives).
The Supreme Administrative Court finds that this results in significant procedural errors. Furthermore, an oral hearing that the appellant requested was rejected, which also represents a violation of procedural rules in this case.
Outcome:
Appeal granted.
Observations/comments:
This summary was written by Michael Spath, Master student of International Relations at the Institut Barcelona d’Estudis Internacionals.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| AsylG (Asylum Law) 2005: § 57; § 11 |
| FPG (Alien’s Police Act) 2005: § 52(9) |
| VwGG (Administrative Court Act): § 42(2) lit. b and c; § 47 and the following |
Other sources:
Domestic Case Law Cited
VwGH (Supreme Administrative Court) 23 January 2018, Ra 2018/18/0001
VwGH (Supreme Administrative Court) 10 December 2014, Ra 2014/18/0103-0106
VwGH (Supreme Administrative Court) 22 September 2017, Ra 2017/18/0166
VwGH (Supreme Administrative Court) 16 December 2010, 2006/01/0788
VfGH (Constitutional Court) 30 November 2018, E 3870/2018