Recent decisions: Gross misjudgment of the legal situation
Home/Recent decisions: Gross misjudgment of the legal situation
2022-11-16T10:48:41+01:0018. 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.