Austria – Asylum Court, 7 February 2012, S1 424.244-1/2012/3E

Country of Decision:
Country of Applicant:
Date of Decision:
07-02-2012
Citation:
S1 424.244-1/2012/3E
Court Name:
Asylum Court
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Headnote: 

This was an appeal against the decision to transfer the applicant to Hungary on the ground that Hungary would transfer the applicant to Serbia, which would amount to indirect refoulement in violation of Article 3 ECHR. The Asylum Court allowed the appeal and held that, although Hungary can be assumed as a safe country, if an applicant gives individual reasons for why Hungary is not safe these must be examined in detail. 

Facts: 

The applicant applied for asylum in November 2011. He claimed he came to Europe via Iran, Turkey and Greece, where he stayed for one year. The applicant then crossed the border to Macedonia and Serbia, subsequently arriving in Hungary, where he did not apply for asylum, and, finally, entered Austria. Austria consulted Hungary and the Hungarian authorities agreed to take him back.

The applicant did not know anything about Hungary. However, while in Serbia he had met people who told him they were deported from Austria to Hungary and back to Serbia.

The Federal Asylum Office rejected his application and issued an expulsion order to Hungary. The applicant appealed against this decision to the Asylum Court.

Decision & Reasoning: 

The Asylum Court allowed the appeal and returned the case to the Federal Asylum Office for further investigation.

The Asylum Court said the Dublin consultations were led correctly. The applicant stated he had travelled through the woods of Subbotica, close to the Hungarian border with Serbia. It is known that asylum applicants often take this route to come to Austria. During his first interview the applicant had already said he passed Hungary. Therefore, it seemed clear that he must have traversed Hungary, which would then be responsible for his asylum procedure.

In its decision, the Federal Asylum Office assured the applicant that he would have a procedure on the merits in Hungary. In principle, the Asylum Court agreed with the decision and said that due to EU law it can be assumed that Hungary is a safe country for asylum seekers. The court stated there are no internal failures in the Hungarian asylum system and, therefore, the potential risk of a violation of Article 3 ECHR due to COI can be ruled out.

However, in this case, the applicant claimed he had met persons who had been deported from Hungary directly to Serbia after their deportation from Austria. The Federal Asylum Office did not ask him any further questions regarding this point, but claimed that he would “surely” have a procedure on the merits in Hungary – although even the country reports state that Hungary regards Serbia as a safe country.

Due to the above facts, a violation of Art 3 ECHR is possible in this particular case and the Federal Asylum Office has to make further investigations concerning the risk of indirect refoulement from Hungary to Serbia.

Outcome: 

The appeal was allowed and the case was returned to the Federal Asylum Office for further investigations concerning the risk of indirect refoulement from Hungary to Serbia.

Subsequent Proceedings : 

Another inadmissibility decision by the Federal Asylum Office followed. The applicant appealed against it once more but no final decision has been reached so far. The applicant absconded and the asylum procedure was terminated.

Observations/Comments: 

The results and findings of this casedoes not mean that Hungary is seen as an unsafe country from now on. It only means that if a person gives individual reasons why Hungary is not safe, the Federal Asylum Office has to examine them in detail.

It has to be clarified that the Federal Asylum Office as well as the Asylum Court have their own COI, which consists of various reports from different sources. These reports are gathered from NGOs as well as from other countries (especially UK Home Office, reports from German Foreign Ministry etc). Additional sources are the relevant laws of the respective state, reports from Austria’s own diplomatic missions and correspondences with the authorities of the relevant country.

These country reports are used in every asylum procedure. In cases where a special topic arises (for instance, a serious medical condition or another kind of individual threat of a violation of Art 3 ECHR) further investigations have to be undertaken to exclude a risk of a violation of the constitutional rights.
 


This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.

Other sources cited: 

United States Department of State, 2010 Country Reports on Human Rights Practices - Hungary, 8 April 2011.

Hungarian Helsinki Committee, Stuck in Jail: Immigration Detention in Hungary (2010), April 2011.

European Migration Network: Annual Policy Report (2010), October 2011.

Case Law Cited: 

ECtHR - KRS v United Kingdom (Application no. 32733/08)