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NewsChiefofKumar2020-06-24T17:56:30+02:00

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Recent decisions: A five-year-old girl can have her own reasons for flight

16. November, 2022|

I recently represented a five-year-old girl from Afghanistan, born in Austria, whose mother had died and for whom custody had been transferred to the child and youth welfare agency. The Federal Administrative Court subsequently granted the girl the status of beneficiary of subsidiary protection, while it dismissed my client’s application for the status of beneficiary of asylum essentially on the grounds that it could not recognize any persecution relevant to asylum, for example due to internalization of a “Western” way of life, also because of her young age. Although the court said that it could not ignore the well-founded fears that the situation in Afghanistan could deteriorate significantly since the Taliban came to power, the court could not yet foresee further developments. There was also no indication for the court that all Afghan women were equally exposed to asylum-relevant persecution merely because of their gender.

My appeal against this decision to the Constitutional Court was successful:

I argued that the Federal Administrative Court had not sufficiently addressed the individual situation of the girl born and raised in Austria, who would return to the Taliban’s Afghanistan as a minor and an orphan. The Constitutional Court was of the same opinion and referred, among other things, to its case law on the asylum relevance of denying girls access to education. The Constitutional Court therefore overturned the decision of the Federal Administrative Court on the grounds of failure to investigate a crucial point relevant to the decision and disregard of the specific facts of the case to the extent challenged.

(VfGH 19.09.2022, E 3887/2021)

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Lecture: Prohibition of Torture

5. October, 2022|

The lecture provides participants with an introduction to the system of human rights protection in general as well as a more in-depth look at selected human rights issues.

On 12 October 2021, at 5:00 p.m., Renate Kicker and I will discuss selected aspects of the fundamental human right not to be subjected to torture or inhuman or degrading treatment or punishment with the participants with a focus on torture prevention in places of deprivation or restriction of personal liberty, such as in prisons and care facilities, or in case of coercive acts by the police.

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Recent decisions: Violation of Art. 2 and Art. 3 ECHR

5. July, 2022|

Violation in the constitutionally guaranteed right to life under Article 2 ECHR and in the right under Article 3 ECHR not to be subjected to torture or inhuman or degrading punishment or treatment:

Despite the extreme volatility of the security situation and the precarious supply situation in Afghanistan evident at that time, the Federal Administrative Court still dismissed the complaint of a person who had fled Afghanistan as unfounded in mid-November 2021 – i.e. months after the Taliban had taken complete power in Afghanistan – and thus confirmed the return decision issued against the person. One of the reasons given by the court was that, in its view, the security situation in Afghanistan was expected to calm down after the Taliban took power (sic!).

The Constitutional Court also overturned this decision in its ruling of 29 June 2022, E 4621/2021, which was delivered today:

“In its decision regarding the non-recognition of the status of beneficiary of subsidiary protection, the Federal Administrative Court applied Section 8 (1) of the 2005 Asylum Act in a manner contrary to Articles 2 and 3 of the ECHR. (…)

In the opinion of the Constitutional Court, in particular on the basis of the brief information – available at the time of the decision of the Federal Administrative Court – of the state documentation of 19 July 2021, an extreme volatility of the security situation in Afghanistan had to be assumed, so that in any case a situation existed in which returnees to Afghanistan would be exposed to a real danger of a violation of their constitutionally guaranteed rights under Articles 2 and 3 ECHR (…). In view of the current reporting situation, according to which the situation in Afghanistan (still) remains volatile (…), the Constitutional Court did not see any reason to deviate from this opinion (…).

Moreover, the Federal Administrative Court’s discussion of the security situation in Afghanistan is limited to references to media reports on individual security aspects (in particular, according to which combat operations are no longer taking place); references to arbitrary checks and punishments, up to and including targeted executions, are not addressed, for example, although they can be found in the country reports cited in the challenged decision.

The assessment of the Federal Administrative Court with regard to the supply situation in Afghanistan is also not reasonable for the Constitutional Court in view of the current reporting situation (…).”

The Federal Administrative Court now has to make a new decision and – from today’s perspective – will have to grant my client the status of beneficiary of subsidiary protection.

VfGH 29.06.2022, E 4621/2021 (noch nicht im RIS)

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Lecture: “Introduction to Asylum Law: Theory and Practice”

1. June, 2022|

The interactive lecture deals with the national and international legal framework, its relation to the international human rights system as well as current issues and actual cases.

On 1 June 2022 Thomas Becker and I will discuss current problems with the participants on the basis of selected cases from our legal practice, such as the changing situation in Afghanistan and its impact on the decision-making practice of the authorities and courts.

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Recent decisions: Gross misjudgment of the legal situation

18. March, 2022|

A man from Bangladesh claimed in his asylum proceedings that he is homosexual and lives in a homosexual partnership. In his country of origin, homosexual relationships are illegal. He wanted to publicly affirm his sexual orientation, but this would result in persecution in Bangladesh.

In its decision of January 2021, the Federal Administrative Court rejected the man’s application for international protection. According to the court, the complainant had not been able to substantiate a concrete threat situation in his country of origin. At the same time, the court ruled that “it must also be stated that the complainant has obviously found contact with the homosexual scene in Austria and now has regular contact with a homosexual Austrian.” The country findings cited by the Federal Administrative Court indicated that homosexual acts in Bangladesh can be punished with life imprisonment.

The appeal filed to the Constitutional Court on behalf of my client challenged the contradictory and incomplete nature of the contested decision and was successful:

The Constitutional Court overturned the challenged decision because it was not reasonable that the Federal Administrative Court, in particular in view of its own findings on the complainant’s homosexual orientation, refrained from any consideration of the question whether the complainant, in the event of a return to his country of origin, would be exposed to threats or persecution on account of his homosexuality, which the Federal Administrative Court recognizably did not call into question. (VfGH 22.06.2021, E 641/2021, https://www.ris.bka.gv.at/Dokumente/Vfgh/JFT_20210622_21E00641_00/JFT_20210622_21E00641_00.pdf).

In response, the Federal Administrative Court issued another decision in September 2021. This time, it granted the complainant the status of beneficiary of subsidiary protection. It found that the complainant was threatened with persecution specifically directed against him on the basis of his alleged sexual orientation in the event of his return to Bangladesh. However, according to the Federal Administrative Court, there were no circumstances “according to which it would be sufficiently probable that the complainant would be threatened in an asylum-relevant manner in his home country as a result of past events.”

I also appealed against this finding to the Constitutional Court, since on the basis of the findings of the Federal Administrative Court, the complainant should have been granted the status of a person entitled to asylum. Decisive for the assessment of the risk of persecution are not only those reasons that led the complainant to leave the country of origin, but also those that could constitute persecution relevant to asylum at the time of the decision.

This appeal was also successful. In its decision, which again overturned the decision of the Federal Administrative Court, the Constitutional Court stated: “By not recognizing the complainant, who according to the findings and the evaluation of evidence of the Federal Administrative Court is exposed to persecution specifically directed against his person by the state [], as a refugee within the meaning of Article 1(A)(2) of the Refugee Convention, the Federal Administrative Court grossly misjudged the legal situation with regard to Section 3(1) of the Asylum Act 2005.” (VfGH 01.03.2022, E 3916/2021, https://www.ris.bka.gv.at/Dokumente/Vfgh/JFT_20220301_21E03916_00/JFT_20220301_21E03916_00.pdf)

With decision of the Federal Administrative Court of March 11, 2022, my client was finally granted the status of a person entitled to asylum.

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Recent decisions: Right to the lawful judge

8. February, 2022|

When filing her application for international protection, an unaccompanied minor girl had alleged that her father had tried to force her to marry a man.

The Federal Office for Immigration and Asylum rejected this application with regard to asylum, but granted her subsidiary protection. The Federal Administrative Court subsequently dismissed the appeal against the rejection of the application with regard to asylum as unfounded.

The Constitutional Court ruled on the complaint filed on behalf of my client that her constitutionally guaranteed right to proceedings before the statutory judge (Art. 83 (2) B-VG) had been violated:

In the event of an alleged fear of persecution due to a violation of the right to sexual self-determination, section 20 of the Asylum Act 2005 provides for a hearing before the administrative authority and for a hearing and decision by the Federal Administrative Court by a person of the same sex, unless the party expressly requests otherwise. By deciding on the complainant’s appeal by a judge of male gender, although section 20 (2) of the Asylum Act 2005 was applicable in the present case, the decision of the Federal Administrative Court had to be dismissed.

VfGH 29.11.2021, E 2865/2021 (not yet available in RIS)

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Lecture: “Introduction to Asylum Law: Theory and Practice”

7. January, 2022|

The interactive lecture deals with the national and international legal framework, its relation to the international human rights system as well as current issues and actual cases.

On 10 January 2022, Thomas Becker and I will discuss current problems with the participants on the basis of selected cases from our legal practice, such as the changing situation in Afghanistan and its impact on the decision-making practice of the authorities and courts.

More

Lecture: Prohibition of Torture

15. November, 2021|

The lecture provides participants with an introduction to the system of human rights protection in general as well as a more in-depth look at selected human rights issues.

On 17 November 2021, at 5:00 p.m. (this year unfortunately again only online, see link below), Renate Kicker and I will discuss selected aspects of this fundamental human right with the participants with a focus on torture prevention in places of deprivation or restriction of personal liberty, such as in prisons and care facilities, or in case of coercive acts by the police.

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Recent Decisions: Constitutional Court on the current situation in Afghanistan

7. October, 2021|

In its decision of 30 September 2021 on the changed situation in Afghanistan following the takeover of power by the Taliban, the Constitutional Court decided that

“on the basis of the country report of 11 June 2021 printed (and dealt with) in the challenged ruling, but in particular on the basis of the “Kurzinformation der Staatendokumentation” of 19 July 2021 (and the broad media coverage available at the time of the decision of the Federal Administrative Court), at the latest as of 20 July 2021, i.e. also at the time of the challenged decision of the Federal Administrative Court, an extreme volatility of the security situation in Afghanistan had to be assumed, so that in any case a situation exists which exposes the complainant, in case of a return to Afghanistan, to a real danger of a violation of his constitutionally guaranteed rights under Art. 2 and 3 ECHR (on the significance of this circumstance for the assessment of the existence of a real danger within the meaning of Art. 2 and 3 ECHR, see e.g. VfSlg. 19.466/2011, 20.296/2018, 20.358/2019; VfGH 6.10.2020, E 2406/2020).”

(VfGH 30.09.2021, E 3445/2021-8, 4.6, https://www.ris.bka.gv.at/Dokumente/Vfgh/JFT_20210930_21E03445_00/JFT_20210930_21E03445_00.pdf

Alumni im Porträt

2. May, 2021|

Alumni Uni Graz visited me in my office and asked me why I chose human rights work, which case was particularly touching, how my studies prepared me for my work and what I would like to achieve with my work.