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

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.