Austria- Asylum Court, 6 December 2012, C16 427465-1/2012

Country of Decision:
Country of Applicant:
Date of Decision:
06-12-2012
Citation:
AsylGH 06.12.2012, C16 427465-1/2012
Court Name:
Asylum Court
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 11
Austria - Asylgesetz (Asylum Act) 2005 - § 18
Austria - Asylgesetz (Asylum Act) 2005 - § 2 (1) (13)
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 37
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Headnote: 

Neither the Applicant, who was approximately nine years old at the time of the decision, nor her parents had submitted reasons for persecution specifically relevant to the Applicant in the proceedings at the court of first instance or in the appeal. Despite this, the Asylum Court reached the conclusion – amongst other things after a personal hearing of the Applicant – that the Applicant would be persecuted directly by the state or privately in Afghanistan owing to her membership of a particular social group and the religious-political attitude to which she would be subjected. In doing so the Asylum Court applied child specific considerations.

In addition, the Court stated that group persecution was to be assumed with regard to Afghan women.

Facts: 

The Applicant, who was born in 2003, lodged an application for international protection in Austria in 2011 together with her parents and four siblings, who were minors. The Federal Asylum Agency refused the applications for international protection of the entire family regarding asylum and subsidiary protection in 2012 and issued an expulsion decision with regard to Afghanistan. The Applicant lodged an appeal against this decision to the Asylum Court. In the appeal it was primarily stated that the Federal Asylum Agency had incorrectly assumed she lacked credibility and the authority had failed to recognise that the family had no reasonable internal protection alternative when faced with persecution by Kuchis. In particular the authority had not assessed the security situation in Kabul correctly. Moreover, the family was at risk of financial distress as it could no longer satisfy its most urgent basic needs in Afghanistan.

After an oral hearing before the adjudicative court, in which, amongst other things, the Applicant herself as well as her parents were heard, the Asylum Court upheld the appeal in a ruling of 06.12.2012 and granted the Applicant asylum .

Decision & Reasoning: 

The Asylum Court held that with regard to the Applicant and minors in general, the information given by one of the parents that the county of origin had (also) been left because of the children’s future has to be regarded at least as a submission in outline with regard to persecution relevant to asylum. This is also the case if the child has otherwise not asserted any reasons for flight of her own and the child herself has not expressed any fear of persecution.

In addition, it would not be a matter of whether a person is actually frightened in a given situation, but whether a sensible person would be frightened in this situation on Convention grounds. With regard to children, according to the UNHCR it should also be noted that the latter may in some circumstances not show recognisable fear. In this case according to the UNHCR, a decision should be taken regardless of the tangible fear of the child on the basis of the objective assessment of the risk for the child in the country of origin. The objective fear is that as a minor Afghan girl, she would be subject to discrimination equating to persecution.

In its findings the Asylum Court stated on the situation of the Applicant that in the event of a return to Afghanistan her parents would continue to live in accordance with their values. This would mean that the Applicant would not receive an education, would be raised to be a wife and mother and would be married to a man chosen by her father or grandfather in the foreseeable future. The Applicant would not have the slightest opportunity to lead an independent life in line with her beliefs, but would be screened from society living chiefly in her own four walls and having to serve her future husband. She would not have the opportunity to protect herself e.g. against acts of violence or undesired restrictions.  

As a minor Afghan girl from a traditional Afghan-oriented parental home she belongs to a particular social group and would be persecuted directly by the state or privately without any prospect of state protection. The treatment she could expect in her country of origin would have consequences which would have a substantial adverse effect on the Applicant.

If she returned, the Applicant would run both the general risk for Afghan women and girls of attacks on physical integrity and safety as well as the specific threat to the Applicant, who, as the dependent child of a conservative Afghan father, would be forced to live in such a parental home. Her mother would not be able to protect the Applicant in the event of her return to Afghanistan owing to the climate of continuous latent harassment, structural violence and direct restrictions, meaning she is confronted with a situation in which she is almost completely prevented from exercising fundamental human rights.

In addition, there would be an increased risk of persecution of the Applicant owing to the basic attitudes of the Applicant with regard to the right of young women to receive an education and have their own profession outside the home, which is already recognisable and is in stark contrast to the values prevalent in Afghanistan and the traditional religious role of women.

There could also be persecution on religious grounds. This is to be assumed if the expected action were to take place on the basis of a refusal to be subject to the rites and customs associated with the religion. In the case of the Applicant there is a risk that she would stand out in Afghanistan as she grew older and on the basis of the increase in self-confidence she has already experienced in Austria (desire for a profession, experience that her mother received state aid against male violence, freedom of movement etc.), she would come under suspicion that she was not adhering to the rites and customs associated with the religion. Owing to the decisive combination of social, religious and political values, the asylum ground of political attitude also exists.

Lastly the Asylum Court recalled that owing to the case law cited in the finding there is persecution of female Afghans as the victims of group persecution, because here a collection of regulations in conjunction with the nature of their implementation is so extreme that discrimination has reached the extent of persecution within the meaning of the Geneva Convention relating to the Status of Refugees. It therefore would not depend on additional disproportionality in the event of breaches and therefore whether a breach could be expected by the asylum seeker concerned in this case.

Outcome: 

The appeal was upheld and the Applicant was granted asylum.

Observations/Comments: 

Owing to the neglect of child specific considerations in asylum case law to date and numerous experiences with asylum proceedings that were not particularly child-oriented, this finding is interesting with regard to these aspects. 

Other sources cited: 

UNHCR, Guidelines for assessing the international protection needs of  Afghan asylum seekers, summary translation, 24.03.2011

UNHCR Guidelines: Child Asylum Claims under Articles 1(A)2 and 1(F), 22.12.2009

Goodwin-Gill, The Refugee in International Law² [1996]

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

ACCORD response to inquiry, access of girls to education [a-8115], 08.08.2012

Case Law Cited: 

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

VwGH 26 Februar 2002, 99/20/0509

Austria - VfGH, 20 June 2012, 1986-1990/11-17

VwGH 24 März 1999, 98/01/0352

VwGH 20 September 2004, 2001/20/0430

VwGH 22 März 2000, 99/01/0256

VwGH 17 September 2003, 2001/20/0177

VwGH 12 September 2002, 99/20/0505

VwGH 21 September 2000, 99/20/0373

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

VwGH 23 Juli 1999, 99/20/0208

VwGH 27 Juni 1995, 94/20/0836

VwGH 28 März 1995, 95/19/0041

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

VwGH 22 Dezember 1999, 99/01/0334

VwGH 21 Dezember 2000, 2000/01/0131

Austria - VwGH, 22 März 2003, 99/01/0256

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

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

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

Austria - VwGH, 25 Januar 2011, 98/20/0555

Austria - VwGH, 28 September 2009, 2008/19/1027

Austria - VwGH, 20 Juni 2002, 99/20/0172

Austria - VwGH, 16 April 2002, 99/20/0483

Austria - VwGH, 3 Juli 2003, 2000/20/0071

Austria - VwGH, 31 Januar 2002, 99/20/04978

Austria - VwGH, 31 Mai 2011, 200/20/0496

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

Austria - VwGH, 20 Oktober 1999, 99/01/0197

Austria - VwGH, 15 März 2001, 99/20/0128

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

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

Austria - VwGH, 16 Februar 2000, 99/01/0097

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

VwGH 25 Januar 2001, 2001/20/0011