Austria - Constitutional Court (VfGH), 16 September 2013, U1268/2013

Country of Decision:
Country of Applicant:
Date of Decision:
Court Name:
Constitutional Court (VfGH)
National / Other Legislative Provisions:
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 68(1)
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - BVG über die Beseitigung rassischer Diskriminierung (Implementation of the International Convention on abolishment of all forms of racial discrimination) - Art I (1)
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This case involved a violation of the right to equal treatment of foreigners as a result of a rejection of the application for international protection and expulsion of the homosexual Applicant to Nigeria because of a failure by the decision-maker to make its own country determinations and to thoroughly examine the situation of homosexuals in Nigeria.


The Applicant travelled to Austria in 2009 and applied for international protection, for which he gave the reason that he was to have been murdered by a certain person and had therefore left the country. This application was finally legally determined by a refusal in November 2010.

In December 2010 he again applied for international protection, whereby he pleaded that he was homosexual and had had a relationship with a man in Nigeria. The latter’s wife had seen them together one day and had threatened to call the police. He feared he would be arrested by the police or killed because homosexual acts are forbidden in Nigeria and are a criminal offence throughout the whole country. In Austria, he maintained sexual relationships with three men. At a later date, the Applicant submitted a statement by his current partner as evidence of the existence of a family life deserving protection within the meaning of Art 8 of the ECHR.

The asylum application was initially rejected on the grounds that it had already been decisively determined, his sexual orientation was found not to be credible and, even if it was assumed to be true, no new facts had been raised after the final legal determination in the first proceedings. In the final analysis, this decision by the Asylum Court was revoked by the Constitutional Court on the grounds of an arbitrary violation of the obligation to investigate.  


After holding an oral hearing and then the referral of the proceedings to the Federal Asylum Agency by the Asylum Court, the Federal Asylum Agency finally issued a further decision in January 2013 again refusing the application on the grounds that it had already been determined. The Asylum Court did not uphold the appeal lodged against this. The Asylum Court stated, amongst other things, that the grounds for flight on the basis of homosexuality submitted only during the second asylum proceedings did not represent “any new plea”, which had arisen only after the completion of the first asylum proceedings because the Appellant had expressly stated that he had already known this a long time before this application was lodged. The decision (to be defined as a classic mental reservation) to wish to make his alleged homosexuality known neither before the Federal Asylum Agency nor the Asylum Court as part of his original proceedings must ultimately be found to be the Applicant’s own responsibility or he must be answerable for it as a result and this does not provide an adequate reason for repeated proceedings on the merits. With regard to the general situation in the country of origin, the Asylum Court based itself on the country findings made by the Federal Asylum Agency and in summary stated on the subject of sexual orientation, that “a general state persecution of members of this group was not indicated; on the contrary every weekend there were even adverts in the daily newspaper with the highest circulation, “The Sun”, with contact details for gay or lesbian Nigerians.“ Therefore “against this background, a violation of the rights granted [to the Applicant through] Art. 3 of the ECHR is not to be feared with sufficient probability  in this case in the event of his return.”


The Applicant lodged another appeal against this decision to the Constitutional Court.

Decision & Reasoning: 

According to the case law of the Constitutional Court, the asylum authorities are obliged with regard to a subsequent application in asylum proceedings to subject changes to the facts of the case to an examination not only concerning the recognition of asylum status, but also concerning the grant of subsidiary protection status.


The Asylum Court rightly assumed in the contested decision – on the basis of the statements by the Applicant – that pleading flight on the grounds of homosexuality is not a new plea arising after the completion of the asylum proceedings; however it apparently bases its decision implicitly on the Applicant being a homosexual and undertakes in this connection a – cursory – examination with regard to the risk of a violation of Art 3 of the ECHR.

However, the Asylum Court makes no country findings of its own in the contested decision but deduces from the country findings undertaken by the Federal Asylum Agency regarding the situation of homosexuals in Nigeria that general state persecution of members of this group does not exist because of the lonely hearts adverts mentioned; it therefore adopts the results – together with the latter’s legal assessment – arising from a single country report reproduced in the decision by the Federal Asylum Agency, but completely disregards those other country reports contained in the decision by the Federal Asylum Agency, from which it arises that homosexual acts of any kind in Nigeria are threatened with prison sentences according to secular law (up to 14 years) as well as with physical punishment according to Islamic law (up to death by stoning). Against the background of these country findings and the pleading that for the Applicant “it would be dangerous to live as a homosexual in Nigeria”, a review should in any case have been undertaken whether in his actual situation he would have been threatened with danger in accordance with Art. 3 of the ECHR if he was returned to his country of origin. The Asylum Court therefore acted arbitrarily in its decision by failure to undertake a sufficient examination – with which the expulsion decision ordered for the Applicant in accordance with § 10(1)(1) of theAsylum Act is inseparably associated. 


The appeal was upheld and the challenged decision was revoked.


Previous decisions in these proceedings:

-          Asylum Court (AsylGH) 20.12.2010, A12 410.395-2/2010

-          AsylGH 21.07.2011, A12 410.395-3/2011

-          Constitutional Court (VfGH) 05.03.2012, U1776/11

-          AsylGH 18.10.2012, A12 410.395-3/2011

-          AsylGH 24.04.2013 A12 410.395-4/2013

In the decision VfGH 05.03.2012, U1776/11, the Constitutional Court had already stated the following on the same case:

“The Asylum Court bases its decision chiefly on the lack of credibility of the pleading by the Appellant with regard to his homosexuality; it states on this subject that the latter did not broach the issue of his sexual orientation during the first asylum proceedings and had not commented in more detail on his alleged sexual relationship in Nigeria. If this might also conceivably apply to the pleading with regard to  Nigeria, then the Appellant submitted a statement during the proceedings before the Federal Asylum Agency by his alleged partner in Austria in which the latter confirms the existence of cohabitation, and, in his appeal to the Asylum Court, applied for the latter to be heard as a witness. The Asylum Court did not comply with this request; in the contested decision it responded neither to the statement by the partner nor gave reasons as to why this was not taken into consideration. This however means that the Asylum Court has failed to give reasons why it – despite evidence being available in the file – assumes the lack of credibility of the pleading by the Appellant on this subject.”

Other sources cited: 

U.S. Department of State: Country Report on Human Rights Practices for 2011 – Nigeria

Foreign Affairs Office: Report on the situation relevant to asylum and deportation in the Federal Republic of Nigeria, Status: April 2012

Austrian Embassy Abuja: Asylum countries report Nigeria, November 2011

§§ 214, 217 of the Federal Nigerian Criminal Code

Case Law Cited: 

Austria - Constitutional Court (VfSlg.), 19.642/2012

Austria - Constitutional Court (VfSlg.), 19.466/2011