Case summaries

There is a well-founded fear of persecution based on membership of a particular social group in the case of an applicant who, even though he is not gay, he is perceived as such by his community, his family and the authorities in his country of origin. 

The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.

The Court found a violation of Article 3 in relation to a subsequent application for asylum, which had been rejected on the basis that it contained no new elements indicating that the Applicants ran a real risk of being subjected to inhuman and degrading treatment or punishment on deportation to Russia. Because new information had in fact been provided, the national authorities were under an obligation to thoroughly review the information in order to assure themselves that the Applicants’ rights under Article 3 would be safeguarded.

The case dealt primarily with the standard of reasoning required in credibility assessment among other issues (travel findings and best interests of the child). In quashing the RAT decision, the High Court ruled that the RAT had not met the standard of reasoning required in assessment of the credibility of oral testimony (as established in the jurisprudence of the Court and EU law), reiterating the obligation upon the decision maker to ensure that each negative credibility finding is accompanied by an adequate rationale clearly outlining the reasons for such findings.

When addressing asylum claims, refugee status must be recognised when there is a well-founded fear of persecution for any of the reasons foreseen in the 1951 Refugee Convention. Assessment of an asylum request fundamentally needs careful consideration of the facts and personal circumstances of the asylum seeker, as well as an analysis of the nature of the risk. The criteria of this test does not have to be restrictive, it is sufficient that the competent authority has a rational belief that the requirements are met for the purpose of receiving refugee status.

Whilst the Appeals Committee believes that the applicant was ‘wronged’ during the administrative procedures in the First and Second Degree (pursuant to Decree 113/2013), the Committee is unable to request a new personal interview, because no such provision exists within the national legislation (Regulation Service of Authority and Appeal 339/2013 opinion of the Legal Council).

This case examined the denial of a minor’s application for asylum which was decided primarily on the failure of his mother’s application. The Refugee Appeals Tribunal did not consider Country of Origin Information (COI) from the child’s perspective. Furthermore, clear reasons were not given for the refusal decision. The High Court granted leave and quashed the Refugee Appeals Tribunals decision to deny refugee status to the child. The Court also held that the best interests of the child should be a primary consideration of the Tribunal both with regard to the procedure and substantive consideration of appeal. 

In this case, the European Court of Human Rights (ECtHR) revisited the conditions of Mogadishu, Somalia as it relates to an alleged violation of Article 3 of the European Convention of Human Rights (ECHR).

In the specific case, the ECtHR held that:

1) While the general conditions of Mogadisuh remain serious and fragile, objective reports support the finding that such conditions are not sufficient to find a violation of Article 3 of the ECHR; and

2) While the ECtHR acknowledged that the applicant in the present case faces a different threat as a woman and that several objective reports described the serious and widespread sexual and gender-based violence in the country, the Court was concerned with the applicant’s credibility.

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.

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.