Austria - Asylum Court, 21 November 2011, C2 419963-2/2012

Country of Decision:
Country of Applicant:
Date of Decision:
21-11-2011
Citation:
AsylGH 21.11.2011, C2 419963-2/2012
Court Name:
Asylum Court
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 6
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 18
Austria - Asylgesetz (Asylum Act) 2005 - § 28
Austria - Asylgesetz (Asylum Act) 2005 - § 40
Austria - Asylgesetz (Asylum Act) 2005 - § 61 (3)
Austria - Asylgesetz (Asylum Act) 2005 - § 73
Austria - Asylgesetz (Asylum Act) 2005 - § 75
Austria - Asylgerichtshofgesetz (Asylum Court Act) - § 9 (1)
Austria - Asylgerichtshofgesetz (Asylum Court Act) - § 11
Austria - Asylgerichtshofgesetz (Asylum Court Act) - § 23
Austria - Asylgerichtshofgesetz (Asylum Court Act) - § 24
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 66
Austria - Strafgesetzbuch (Penal Code) - § 83 ff
Austria - Strafgesetzbuch (Penal Code) - § 105 ff
Austria - Strafgesetzbuch (Penal Code) - § 201 ff
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 129
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Headnote: 

The Applicant fled to Austria to be with her husband. She pleaded no reasons for fleeing such as problems of living as a woman in Afghanistan and the Federal Asylum Agency also made no investigations into this aspect. Only in the appeal were specific women’s issues raised. The Asylum Court decided that the Federal Asylum Agency was obliged to undertake the appropriate investigations under apparent theoretical circumstances relevant to asylum (such as gender), even if the party did not initiate such a submission. 

Facts: 

The Applicant originating from Afghanistan lodged an application for international protection on 09.03.2011. In the initial interview she stated that she had no reasons of her own for fleeing and had wished to make an application in family proceedings with regard to her husband. She had never had any problems with state agencies or suffered any other persecution. Problems of being a woman, such as restrictions on personal freedom of movement, were not mentioned. The Federal Asylum Agency refused the application for asylum, recognised subsidiary protection status for the Applicant (and her husband and children). In the grounds for this decision the Federal Asylum Agency stated that the Applicant had travelled to Austria because her husband was here. Owing to the decision in the proceedings of the husband, she should have been granted subsidiary protection status. There were only sporadic references to the situation of women in Afghanistan in the decision.

The Applicant lodged an appeal against the fact that asylum had not been granted. In this she pleaded, amongst other things, that she was at risk of gender specific persecution in Afghanistan owing to the risk of a forced marriage or persecution owing to her Western attitudes. There were also no reports on the situation of women in Afghanistan in the findings made by the authorities. The Applicant had used the freedoms she had enjoyed since her arrival in Austria to a large extent and led an independent and emancipated life from an Afghan perspective. She planned to attend a German course and schooling. She had therefore clearly become accustomed to a Western lifestyle, which was relevant to asylum. The Federal Asylum Agency had grossly breached the official obligations to investigate.

Decision & Reasoning: 

In its findings the Asylum Court stated that in accordance with the Asylum Act 2005, the Federal Asylum Agency has an official obligation to determine the facts of the case relevant to the decision. If circumstances are apparent that suggest recognition of refugee status, these are also to be researched officially, even if no submission at the initiative of the party is raised in this respect. This is because a submission could in particular be omitted because the relevant party is not aware of the relevance of the omitted submission. This is why the relevant circumstances might need to be clarified by imaginative questioning. In order to be able to reject an application for asylum, reference to a lack of statements by the Applicant on an apparent obvious circumstance, which might be grounds for recognition of asylum, is not sufficient.

In addition, the Federal Asylum Agency is also required to observe the established case law of the Asylum Court. According to the case law of the Asylum Court, Afghan women are in any case at risk of persecution relevant to asylum if the latter are Westernised or there is a real risk of a forced marriage. The same direction is also followed by the case law of the Administrative Court and the European Court of Human Rights in the judgment of 20.07.2010 in N. v. Sweden.

Overall the Federal Asylum Agency should officially clarify in all proceedings regarding applications by Afghan women and girls whether the relevant Applicant is threatened with a forced marriage; this is a particular risk for unmarried women, but also women who have been violated or entered into a scandalous marriage or one that was not approved of by the family. Furthermore, with regard to the special situation of Afghan women and girls – regardless of their family status – the following should always be clarified officially:

·   “What were the living arrangements of the Applicant in Afghanistan (above all did she live with her parents or her parents-in-law) and how was she treated by the “head of the household” (this does not necessarily mean her husband)?

·   Does the Applicant express a sufficiently clearly articulated desire to start schooling or a job or has she already started such?

·   Is the marriage of the Applicant sound or has she already unmistakably articulated a desire to separate and already undertaken corresponding legal steps?

·   Is the Applicant Westernised?”

With regard to the case in point, the Asylum Court continued that the submission by the Applicant in the appeal that she risks a forced marriage in Afghanistan is not covered by the ban on new evidence in Article 40 Asylum Act 2005 as the Federal Asylum Agency has not complied with its obligation to officially investigate the material truth.

Furthermore the Asylum Court set out the circumstances under which the Applicant should actually have been questioned by the Federal Asylum Agency. The Federal Asylum Agency is also required to determine to what extent the new rights acquired by the Applicant in Austria have already become a major component of her identity, so that suppression of these would equate to persecution relevant to asylum. With regard to the question of the existence of a “Western attitude” and its internalisation, consideration should be taken of the length of time spent abroad in the West and becoming accustomed to a Western life style.  

Outcome: 

The disputed decision was revoked and the matter was referred back to the Federal Asylum Agency to obtain further findings and issue a new decision.

Subsequent Proceedings : 

Asylum Court (AsylGH) 30.07.2012, C2 419.963:the appeal was finally refused as unfounded owing to a lack of submissions relevant to asylum in accordance with Section 3 Asylum Act 2005, with the grounds that the Applicant corresponds to the traditional Afghan image of a woman and she would therefore not have to refrain from living out internalised values or she would not be at risk of persecution from living out such values.

Observations/Comments: 

The case law of the Asylum Court is partly inconsistent, in particular with regard to Afghan women with a “Western attitude” that was not recognisable from external appearances. Neither the Asylum Court itself nor the Federal Asylum Agency adhere here (continuously) to the requirements formulated in this finding. 

Other sources cited: 

UNHCR Position on Afghan asylum seekers, July 2003

Human Rights Watch: World Report 2011, January 2011

Department of Foreign Affairs, Report on the situation relevant to asylum and deportation in the Islamic Republic of Afghanistan, February 2011

Home Office, UK Border Agency, Operational Guidance Note Afghanistan, March 2011

U.S. Department of State, 2010 Human Rights Report: Afghanistan, April 2011

Freedom House, Freedom in the World, Afghanistan 2011

Amnesty International, Amnesty Report 2011

International Religious Freedom Report 2010, November 2010

Case Law Cited: 

ECtHR - N. v Sweden, 20 July 2010, no. 23505/09

Austria - Vwslg, 14.945/A

Austria - Asylum Court, 31 March 2011, C17 405.739

Austria - Administrative Court, 16 January 2008, 2006/19/0182

VwGH 21 November 2002, 2000/20/0084