Austria - Administrative Court (VwGH), 28 June 2011, 2011/01/0099

Country of Decision:
Country of Applicant:
Date of Decision:
28-06-2011
Citation:
VwGH 2011/01/0099
Court Name:
Administrative Court (VwGH)
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 2
Austria - Asylgesetz (Asylum Act) 2005 - § 33
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Headnote: 

A nexus between an act of persecution and the persecution ground is only necessary to meet the definition of a refugee, but not, however, to determine the question of whether persecution (an act of), and therefore a reason against rejecting the application for international protection, was raised during the procedure at the airport.

Facts: 

The female Applicant arrived on 11.04.2007 via Vienna Schwechat airport and applied for international protection there. She stated that she had wanted to travel to Italy to work there. Although she could live off her income in Sri Lanka, she could not however support her parents. As it has not been possible for her to travel to Italy using her true identity, she had used a passport with a false name to enter the country. The fact that she had no money and no job in her home country argued against her deportation to Sri Lanka.

On 24.04.2007 the Federal Asylum Agency refused the application for international protection in full as the Applicant had not claimed any persecution within the meaning of the Geneva Convention Relating to the Status of Refugees. Also “well-founded evidence” of persecution as required by the law had not arisen.

In the appeal lodged against this, the Applicant asserted that in the meantime the situation in Sri Lanka had deteriorated. The peace negotiations had been broken off and the entire country was now in a state of war. In addition, she risked a prison sentence of six months like every other refouled national of Sri Lanka.

The Independent Asylum Board upheld the appeal and stated as grounds for this, amongst other things, that a refusal of the application for international protection in the accelerated airport procedure in accordance with § 33, Para. 1, Line 3 Asylum Act (AsylG) was lawful only if no “persecution” had been asserted in the country of origin. Any action is to be considered “persecution” if it satisfies the conditions of Art 9 of the Qualification Directive. By pleading that in the event of deportation back to Sri Lanka she would be imprisoned for using a false passport, she had asserted persecution in accordance with Art 9 of the Qualification Directive. A nexus to a persecution ground within the meaning of Art 10 of the Qualification Directive with reference to the  persecution grounds in the Geneva Convention Relating to the Status of Refugees, is not necessary.

The Federal Ministry for Internal Affairs lodged an official appeal against this decision by the Independent Asylum Board to the Administrative Courton the ground ofunlawfulness: the latter opposed the Independent Asylum Board’s interpretation  of the concept of persecution contained in § 33, Para. 1, Line 3 of the Asylum Act 2005; the question of the act of persecution could be seen in isolation from the persecution ground.

Decision & Reasoning: 

The Administrative Courtrefused the official appeal and therefore confirmed the decision given by the Independent Asylum Board.

The Administrative Courtreasoned that the accelerated refusal of the application in the airport procedure on the basis that the Applicant had not put forward any grounds for granting refugee status within the meaning of the Geneva Convention Relating to the Status of Refugees was unlawful if one of the acts of persecution mentioned in Art. 9, Para. 1 of the Qualification Directive was raised. This is because it arises from Art. 9(3) of the Qualification Directive that a nexus is necessary between the acts of persecution (Art. 9(1)) and the persecution grounds (Art. 10)is necessary only in order to meet the refugee definition. The Austrian provisions on the accelerated airport procedure do not however require such a connection.

Also, it is not for the Administrative Court to take into account that this interpretation would render the airport procedure without meaning.

Outcome: 

The official appeal by the Federal Ministry for Internal Affairs was refused as unfounded.

Observations/Comments: 

Contested decision of the Independent Asylum Board:

16.05.2007, File number 311.640-1/2E-II/06/07

The Independent Asylum Board was the court of appeal in asylum cases against decisions by the Federal Asylum Agency between 01.01.1998 and 30.06.2008.

A so-called airport procedure is envisaged for asylum applications at airports in Austria: before applicants are actually permitted to enter Austria and start “normal” asylum proceedings, there is the option for the authority to refuse the application whilst still at the airport in a form of fast-track procedure under conditions laid down in § 33 of the Asylum Act.

§ 33 of the Asylum Act (AsylG) 2005:

Special procedural rules for the airport procedure

(1) In the Initial Reception Centre at the airport the refusal of an application is lawful only if there is no reasonable indication that the asylum seeker should be granted refugee status or subsidiary protection and

1. the asylum seeker has attempted to deceive the Federal Asylum Agency concerning his true identity, his nationality or the authenticity of his documents, despite being advised of the consequences;

2. the submission of the asylum seeker regarding the threat to his safety obviously does not correspond to the facts;

3. the asylum seeker has not asserted any persecution in his country of origin; or

4. the asylum seeker originates from a safe country of origin (§ 39).

(…)

Other sources cited: 

Feßl/Holzschuster, Asylum Act 2005