Austria - Asylum Court, 18 December 2012, E11 429.929-1/2012

Country of Decision:
Country of Applicant:
Date of Decision:
18-12-2012
Citation:
E11 429.929-1/2012
Court Name:
Asylum Court
National / Other Legislative Provisions:
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 66
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 10
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Headnote: 

Transferring the major part of the investigations into the facts of an asylum application to the Court of Second Instance impedes the purpose of an appeal stage. As a specialist authority, the Federal Asylum Agency is obliged to keep up to date with relevant developments under asylum law. Both the departure clause reasons and previous acts of persecution are to be taken into consideration in a decision. With regard to Pakistani members of the Ahmadiyya religious community, the decision by the CJEU in C-71/11 and C-99/11, Federal Republic of Germany v. Y and Z and the right to practise religion in public are to be taken into account.

Facts: 

The Applicant entered Austria in September 2012 and applied for international protection. He stated that he was being persecuted because of his membership of the Ahmadi religious community. The precise details were that he had been injured during an attack on an Ahmadi mosque and had also been physically attacked on other occasions.

The Federal Asylum Agency considered both the information on his religious affiliation and the events described as lacking credibility. The Applicant was therefore awarded neither refugee status nor subsidiary protection status and an expulsion order to Pakistan was issued. The Applicant lodged an appeal against this decision at the Asylum Court.

In the appeal it was asserted amongst other things that there had been comprehension problems with the interpreter, as the hearing had been conducted in the Hindi language, which is different to Punjabi, which the Applicant speaks, in particular with regard to pronunciation. This meant that the information on religious affiliation and the events in Pakistan partly appeared contradictory or incorrect. Furthermore, numerous assertions made by the Federal Asylum Agency on the customs and factual knowledge regarding the Ahmadi religious community, which were used to try to substantiate the lack of credibility, were refuted. Witnesses were identified to prove membership of the Ahmadi religious community.

Decision & Reasoning: 

The Asylum Court criticised the fact that the incident described by the Applicant regarding the attack in the mosque was not discussed in the consideration of evidence and it was also not investigated whether this had occurred in the first place. The statement by the Federal Asylum Agency in the decision that membership of the Ahmadi religious community lacked credibility owing to a lack of factual knowledge, was considered to be incomprehensible by the Asylum Court. Although the assault in the mosque was not directly a cause of departure, the Federal Asylum Agency would nevertheless have been obliged to also take this event into account. This would apply in particular in light of the decision of the European Court of Justice (CJEU) of 05.09.2012 in C-71/11 and Z C-99/11, Federal Republic of Germany v. Y and Z regarding the prosecution of members of the Ahmadi religious community in Pakistan.

However, in the decision of the Federal Asylum Agency this CJEU decision was not taken into consideration nor were definitive individual investigations undertaken regarding the Applicant. In order to avoid transferring the central investigations to the Courts of Second Instance, a cassation decision was taken. The Federal Asylum Agency was charged with undertaking further questioning, expanding the country reports with statements on the current situation of members of the Ahymadi religious community, incorporating the decision by the CJEU in C-71/11 and C-99/11, Federal Republic of Germany v. Y and Z in the decision and issuing a new decision with comprehensible consideration of evidence.

Outcome: 

The appeal was upheld, the disputed decision overturned and the proceedings referred back to the Federal Asylum Agency.

Subsequent Proceedings : 

Status on 04.08.2013: proceedings pending at Federal Asylum Agency

Other sources cited: 

UNHCR: Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14.05.2012 UNHCR report of 14.05.2012

Case Law Cited: 

VfSlg 16.383/2001

VfSlg 15.743/2000

VwGH 04 April 2001, 2000/01/0348

VwGH 20 Februar 2009, 2007/19/0961 -0968

VwGH 22 Dezember 2002, 2000/20/0236

VwGH 21 November 2002, 2000/20/0084

VfSlg. 16.354/2001

VfSlg. 15.451/1999