Case summaries
On top of the usual conditions, the tribunal takes into consideration climate conditions and the consequences on the population in its examination of a subsidiary protection application.
Material dependency is a sign of the dependency of a family member on the applicant and it can be established in many different ways.
The Constitutional Court ruled that Section 5(3) Nr. 4 NÖ MSG, which excludes beneficiaries of subsidiary protection from benefiting from social assistance out of the means-tested minimum income scheme when the person already receives social assistance covered by NÖ GVG is compatible with constitutional rights. It held that it does not constitute a violation of the principle of non-discrimination amongst foreigners. Given the provisional character of residence rights for beneficiaries of subsidiary protection such a legal rule falls within the wide margin of appreciation of the legislator.
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.
The applicant, a Jordanian citizen feared that her eldest daughter who was 17 years old would be forced by the applicant’s in-laws to marry a cousin. The Refugee Appeals Board noted that the daughter had an asylum motive of her own and according to Article 12 of the Convention on the Rights of the Child she had a right to be heard. To ensure a two-tier hearing and adjudication the Board remitted the case to the Danish Immigration Service.
1. Afghans who have worked for international aid organisations are particularly endangered of becoming victims of political persecution by non-state actors (e.g. Taliban) according to § 3 (1) AsylG in case of a return to Afghanistan.
2. There is no internal protection for these people. They cannot escape the clutches of non-state actors as these groups have a wide (information) network at their disposal and an increased interest in persons who have worked for international aid organisations.
The Court held that detention is considered to be arbitrary within the meaning of Article 5 § 1 ECHR, if the length of the detention exceeds what is reasonable for the purpose pursued. It is to be examined whether the authorities have acted with ‘due diligence’.
In cases, such as the present, where the detention has been upheld for a long period, although lawfully, authorities are required to take additional steps in order to proceed with an asylum claim more speedily. When the detained person can be considered as ‘vulnerable’ a higher level of ‘due diligence’ can be expected from the authorities. Even if the asylum claimant complicates the examination of his claim by not providing sufficient evidence, the failure of the authorities to take initiative to end the asylum claim, results in a violation of Article 5 § 1 ECHR.
Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.
The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children.
The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.
The presumption of minority does not apply when bone testing shows the applicant’s majority and when a doctor does not express doubts on the results. The tribunal did not request further tests.