Austria - Asylum Court, 29 January 2013, E1 432053-1/2013

Country of Decision:
Country of Applicant:
Date of Decision:
29-01-2013
Citation:
E1 432053-1/2013
Court Name:
Asylum Court
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A (2)
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
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 - § 41
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Headnote: 

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.

Facts: 

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. 

Decision & Reasoning: 

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.

Outcome: 

The appeal was granted and the Applicant's refugee status was recognised.

Observations/Comments: 

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)

 

 

Other sources cited: 

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

Case Law Cited: 

VwGH 9 November 2004, 2003/01/0534

VwGH 26 Februar 2002, 99/20/0509

VwGH 21 Dezember 2000, 2000/01/0131

VwGH 22 Dezember 1999, 99/01/0334

VwGH, 19 Oktober 2000, Zl. 98/20/0233

VwGH 28 März 1995, 95/19/0041

VwGH 27 Juni 1995, 94/20/0836

VwGH 23 Juli 1999, 99/20/0208

VwGH 21 September 2000, 99/20/0373

VwGH 12 September 2002, 99/20/0505

VwGH 19 Oktober 2006, 2006/19/0297

VwGH 17 September 2003, 2001/20/0177

VwGH 13 November 2008, 2006/01/0191

VwGH 22 März 2000, 99/01/0256

VwGH 20 September 2004, 2001/20/0430

VwGH 17 Oktober 2006, 2006/20/0120

VwGH 24 März 1999, 98/01/0352

VwGH 15 März 2001, 99/20/0036

VwGH 15 März 2001, 99/20/0134

VwGH 25 Januar 2001, 2001/20/0011