Austria - Asylum Court, 29 November 2013, B1 431721-1/2013

Country of Decision:
Country of Applicant:
Date of Decision:
B1 431721-1/2013
Court Name:
Asylum Court (Dr. RUSO, Mag. MAGELE)
National / Other Legislative Provisions:
Austria - Bundesgesetz über die Gewährung von Asyl 2005 (Federal law regarding granting of asylum;
Austria - Bundesgesetz über den Asylgerichtshof 2008 (Federal law for the Asylum Court;
Austria - Allgemeines Verwaltungsverfahrensgesetz 1991
Austria - Einführungsgesetz zu den Verwaltungsverfahrensgesetzen 2008
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An application for international protection lodged by an Afghan who illegally entered Austria was rejected. The Court found that the applicant had no well-founded fear of persecution in his country of origin nor was he to be granted the subsidiary protection status.  


The applicant lodged an application for international protection on 09 July2012 after having illegally entered Austria. The applicant was a senior official in the Afghan ministry for agriculture. He pleaded that he had been threatened by the Taliban in Afghanistan, because he had worked for the state. Further, he said he had been threatened by the property mafia, because he was instructed to take action against corrupt officials and to report those officials to the public prosecutor's office. He claimed that, if returned to Afghanistan, there was a risk that he would be killed by the mafia or the Taliban.

The Federal Asylum Agency rejected the application and the applicant appealed against the decision on 27 December 2012.

Decision & Reasoning: 

The Asylum Court, through a written procedure, assessed the application for international protection under both refugee status and subsidiary protection criteria.

The court ruled that the applicant lacked a well-founded fear of persecution. The well-foundedness of a fear should be considered in relation to an intelligent person in such a situation, and not in relation to the actual fear of the individual concerned. The risk of persecution is to be assumed if persecution has a considerable probability and if such persecution could give reason to find the protection of the home state unreasonable.

The Court followed the view of the Federal Asylum Agency that it was not traceable why the applicant, being a state official, had not sought protection by superior officials. The Court was also not persuaded that the applicant had not been facing threats and assaults for many years during his office, but that this suddenly had changed. According to the Court there also had not been any attacks against him or his family members pursuant to the applicant's statement.

With respect to subsidiary protection, the Court noted that such status is only to be granted if an expulsion would mean a real risk of violating Article 2 ECHR, Article 3 ECHR or the Protocols no. 6 and no. 13 to the ECHR, or if there is a serious threat to life or integrity as a consequence of an international or intra-state conflict. There must be cogent reasons and concrete facts for the real risk. The risk prediction should relate to the situation of the individual concerned and to the general situation of human rights in the state of destination.

The Court held that it was not sufficient to claim the general bad security situation and supply situation in Afghanistan; the applicant must also state the individual circumstances why a real risk of a violation of Article 3 ECHR is probable.

The Court ruled that a risk of the applicant’s Article 8 ECHR rights being violated was not the case here, because the applicant had no family ties to Austria, had only been in Austria for a short period of time, had no permitted work and had not said he had any knowledge of the German language.

Since the public interest in complying with rules regulating the entry and the stay of aliens outweighed the private interests of the applicant in him remaining in the federal territory, expulsion was highly recommended and not unreasonable, according to the Court.

The decision was made in written procedure, because the facts seemed to be clear and it was evident from the prior investigation that the application was not consistent with the facts. On appeal, no new and sufficiently concrete allegations of other reasons for protection were produced. The applicant did also not object the evidence given by the Federal Asylum Agency. Further, no objection with respect to the evaluation of evidence and the admissibility expulsion were raised in the appeal.


The appeal was rejected. The decision of the Federal Asylum Agency was confirmed and the expulsion was found admissible. 


This summary was provided courtesy of DLA Piper.

Other sources cited: 

Filzwieser, Subjektiver Rechtsschutz und Vollziehung der Dublin II-VO - Gemeinschaftsrecht und Menschenrechte, migraLex, 1/2007

Premiszl, Schutz vor Abschiebung und Traumatisierten in "Dublin-Verfahren" migraLex 2/2008

Filzwieser/Sprung, Dublin II-Verordnung. Das Europäische Asylzuständigkeitssystem. Berliner Wissenschafts-Verlag, Neuer Wissenschaftlicher Verlag, Berlin, Wien, Graz 2010

Case Law Cited: 

Austria - Asylum Court 11 November 2010, C2 315601-1/2008/11E

Austria - VwGH, 18 Februar 1999, 98/20/0468

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

VwGH 21 Dezember 2000, 2000/01/0131

VwGH 22 Dezember 1999, 99/01/0334

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

VwGH 24 März 1999, 98/01/0352

Austria - VwGH, 25 Januar 2003, 2001/20/0011

Austria - VwGH, 26 Februar 1997, 95/01/0454

Austria - VwGH, 9 April 1997, 95/01/0555

Austria - VwGH, 18 April 1996, 95/20/0239

Austria - VwGH, 9 März 1999, 98/01/0318

Austria - VwGH, 9 September 1993, 93/01/0284

Austrian - VwGH, 26 Juni 2007, 2007/01/0479

Austria - VwGH, 16 Juni 1994, 94/19/0183

ECtHR - Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v. Ireland [GC], Application No. 45036/98

Austria - Asylum Court, 23 February 2010, C10 410133-1/2009/2E

ECtHR - Said v Netherlands, Application No. 2345/02

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

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

Austria - Administrative Court, 22 December 2009, 2009/21/0348

Austria - Administrative Court (VwGH), 31 March 2005, 2002/20/0582

Austria - Administrative Court (VwGH) 19 February 2004, 99/20/0573

Austria - Constitutional Court, 6 March 2008, B 2400/07

ECtHR - Ndangoya v Sweden, Application No.17868/03

ECtHR - Hukic v Sweden, Application No 17416/05 - Resource

Austria - Asylum Court, 26 January 2010, C10 409335-1/2009/3E