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Home ›Austria - Asylum Court, 29 January 2013, E1 432053-1/2013
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 8
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 1
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 12 > Art 12.2
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 12
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 3
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 6
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 8
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 13
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 18
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 41


Refugee status was recognised for a transgender woman from Pakistan because discrimination for reasons relevant to asylum as well as involuntary prostitution to earn a living are sufficiently serious to represent persecution within the meaning of the Geneva Convention relating to the Status of Refugees.
In 2012 the Applicant applied for international protection in Austria. She stated that she had left Pakistan because she was a so-called "Hijra". She had been born a boy, but had had "tendencies to be a woman" since the age of nine, which is why she was disowned by her family at the age of eleven. She had since been living in various locations, where she worked as a dancer and prostitute together with other transgender persons, as she had no other means of earning a living. She was discriminated against, abused, insulted, shunned and laughed at. The police had repeatedly come into her accommodation and taken her money. The situation deteriorated even further after she married another transgender woman with whom she was acquainted, as this became public knowledge and is forbidden by the Pashtuns. A transgender woman friend had been killed by the Taliban as a result. In order to escape all of this and in fear of her life, which was worthless in Pakistan, she had finally left the country.
The Applicant had not undergone any sex reassignment surgery. Owing to her external appearance and way of life as a woman she had been treated as a woman in the asylum proceedings, with which the Applicant stated that she was in agreement.
The Federal Asylum Agency awarded her the status of a person entitled to subsidiary protection and granted her a limited residence permit for one year. The reasons for the decision were that although the claims were credible and were in principle to be subsumed under a Convention ground (social group), the discrimination was notintensive or systematic which is a condition for granting Convention status. This is so above all against the background of the country findings from which it emerged that, although homosexuality and transsexualism are not officially accepted by society, they are tolerated privately. Although there is criminal liability for proven so-called "unnatural sexual intercourse", this provision is however never applied. In addition, transgender persons are entitled to their own gender attribution ("Hijra") from the state (in an extremely modern and liberal approach, which even exceeds the regulations in European countries) and so this criminal sanction can never be applied. In November and December 2009 the Constitutional Court had strengthened the legal position of transgender persons, including in the field of inheritance and employment law, through corresponding directives to the Government. Other directives to the Federal and Provincial Governments had concerned protection against persecution and the right of access to free health care and education.
Owing to her personal circumstances, namely rejection by her family and her previous occupation, a return to Pakistan would nevertheless not be reasonable. As only involuntary prostitution was open to her, which represented an intensive intrusion into her physical (and emotional) integrity, the equivalent of serious and substantial, intensive and unreasonabe degrading treatment, the subsidiary protection status was recognised.
The Applicant lodged an appeal at the Asylum Court against the refusal to grant refugee status.
The Asylum Court waived holding a hearing as the material facts of the case had already been determined by the Federal Asylum Agency.
The Asylum Court stated with reference to the country reports that the discrimination reported by the Applicant represented grounds for asylum. In the disputed decision the Federal Asylum Agency had stated that involuntary prostitution would be the only opportunity for her to earn a living and this represented a violation of Article 3 ECHR. Disadvantages in a social, economic or religious sphere can be sufficient for an affirmation of refugee status, insofar as they are for reasons relevant to asylum, if they reach such an intensity that it becomes unbearable for the asylum seeker to remain in his home country.
These conditions exist in this case, which is why refugee status should have been recognised.
The appeal was granted and the Applicant's refugee status was recognised.
Other decisions regarding transgender persons:
- Independent Federal Asylum Senate (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 24.02.2011, A4 213.316-0/2008 (Egypt)
Swiss Refugee Council, Pakistan: Situation of Hijras, information from country analysis of 14.05.2012
Department for Foreign Affairs: report on asylum and deportation situation in the Islamic Republic of Pakistan, status: June 2011
Human Rights Commission of Pakistan: State of Human Rights in 2011, March 2012
Department for Foreign Affairs: Pakistan – Internal policies, status: March 2012
Pak Institute for Peace Studies: Pakistan Security Report 2011, 4.1.2012
Swiss Refugee Council (SFH): Information from the SFH – country analysis, Pakistan: justice system and conditions of detention, 5.5.2010
United States Department of State: Country Report on Human Rights Practices 2011, 24.5.2012
US Department of State: Country Report on Human Rights Practices 2010, 8.4.2011
Human Rights Watch: World Report 2012, 22.1.2012
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