Austria - Asylum Court, 24 February 2011, A4 213316-0/2008

Country of Decision:
Country of Applicant:
Date of Decision:
24-02-2011
Citation:
A4 213316-0/2008
Court Name:
Asylum Court
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 15
Austria - Asylgesetz (Asylum Act) 2005 - § 18
Austria - Asylgesetz (Asylum Act) 2005 - § 41(7)
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 66
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Headnote: 

An Egyptian transgender woman, who first underwent gender reassignment surgery and hormone treatment in Austria, was recognised as a refugee as it was accepted that there were problems with the police,  a refusal to issue her a passport using her new personal data and social issues of an intensity relevant to asylum matters.

Facts: 

The Applicant travelled to Austria for study purposes as early as 1989, at that time with male gender features and identity documents. During her stay she underwent gender reassignment operations, was treated with hormones and from then on lived as a woman in Austria.

Already in Egypt the Applicant had often lived out her sexual orientation, which often led her to suffer police assaults and social discrimination.

An attempt to extend the Egyptian passport at the Embassy or to have it changed to female identity, failed. The Applicant was informed that she would have to travel to Egypt in person in order to change her civil status and the documents.

As the Applicant knew several transgender persons who had disappeared during such attempts, she feared she would suffer the same fate and applied for asylum in Austria in 1997.

After passing through all the appellate courts several times (see comments section regarding the highest court decisions on these proceedings), the proceedings finally resulted in the granting of asylum by the Asylum Court.  

The information provided by the Applicant on her gender identity had been assessed as credible since the proceedings in the court of first instance, which is why a hearing before the Asylum Court was waived in the final analysis.

Decision & Reasoning: 

Transsexuality is hardly accepted in Egyptian society and often regarded as a perversion and sin by people with religious or traditional views. Police or official protection against attacks on the Appellant by private individuals owing to her transsexuality is not to be expected in light of the social order. In Egypt it is not possible to obtain other documents on the basis of a change of gender and which correspond to the changed gender.   

The Applicant was not only rejected by most people in Egypt owing to her transsexuality, but there were also quite manifest attacks on her personal space and it also to be expected that these would be repeated if she returned to Egypt.

Lastly, in Egypt there is also not the (legal) option of arranging for documents to be changed after a successful gender reassignment and in future to live officially with a different gender. After any gender reassignment operation carried out abroad it would not be possible to subsequently enter Egypt.

Even if it is conceded that some people reject transsexuality in Austrian society, this rejection is however much less strong than in Egypt. As a result it would be very possible for the Appellant to live in Austria with a new name and the entry of the "female" gender in her documents without public disapproval, which the latter is seeking to do.

Outcome: 

The appeal was upheld and the Applicant was granted refugee status.

Observations/Comments: 

Earlier decisions regarding these proceedings:

  • Federal Ministry of the Interior (BMI) 30.09.1997, 4.352.345/1-III/13/97
  • Administrative Court (VwGH) 08.09.1999, 98/01/0116
  • Independent Federal Asylum Senate (UBAS) 22.04.2003, 213.316/0-V/14/99
  •  VwGH 21.09.2004, 2003/01/0435

Further decision regarding transgender persons:

  • UBAS 24.10.2002, 215.214/0-VIII/22/02 (Iraq)
  • UBAS 10.05.2004, 240.479/0-VIII/22/03 (Georgia)
  • UBAS 28.03.2006, 244.745/0-VIII/22/03 (Iran)
  • Asylum Court (AsylGH) 28.12.2009, S13 409.528-1/2009 (Ecuador; Dublin Regulation Germany)
  • AsylGH 29.01.2013, E1 432.053-1/2013 (Pakistan)
Other sources cited: 

Home Office, July 2008: Lesbian, Gay, Bisexual and Transsexual Persons / People who are infected with HIV/AIDS

Internet reports: "About Transgender Egypt, 2005-2008"

Amnesty International Germany, Asylum reports, 29.07.2005

Grahl-Madsen: The Status of Refugees in International Law I, 1966

Kälin: Grundriss des Asylverfahrens (Outline of the asylum procedure), 1990

"Common position" of the Council of the European Union of 4 March 1996 regarding the harmonised application of the definition of the term "refugee" in Art. 1 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees

Case Law Cited: 

Austria - Administrative Court, 02 March 2006, 2003/20/0317

Austria - Administrative Court, 23 January 2003, 2002/20/0533

Austria - Administrative Court, 14 october 1998, 98/01/0262

Austria - Administrative Court, 19 December 1995, 94/20/0858

Austria - Administrative Court, 04 May 2000, 99/20/0177

Austria - Administrative Court, 28 March 1995, 95/19/0041

Austria - Administrative Court, 24 October 1996, 95/20/0231

Austria - Administrative Court, 27 June 1995, 94/20/0836

Austria - Administrative Court, 11 June 2002, 98/01/0394

Austria - Independent Federal Asylum Senate (UBAS), 24 October 2002, 215.214/42-VIII/22/02