Austria – Higher Administrative Court, 13.12.2018, Ra 2018/18/0533

Country of Decision:
Country of Applicant:
Date of Decision:
VwGH, Ra 2018/18/0533
Court Name:
Higher Administrative Court (Verwaltungsgerichtshof Wien, VwGH) judges: Sporrer, Hofrätin Mag. Dr. Maurer-Kober, Hofrat Dr. Sutter and Hofräting MMag. Ginthör
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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. 


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.


Appeal granted.


This summary was written by Michael Spath, Master student of International Relations at the Institut Barcelona d’Estudis Internacionals.

Other sources cited: 

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