Author
Adequate support during the interview
In cooperation with UNHCR Austria, IOM and LEFÖ BFA, officials of the BFA are offered training sessions providing targeted information on vulnerable groups.[1] These trainings further aim to strengthen their understanding of first-instance procedures and adequate measures to be adopted to ensure a high-quality of interpretation.[2] In addition to the trainings that have been organised on a regular basis since 2016, officials of the BFA are also supported in their day-to-day work through the development of certain tools. UNHCR further develops specific assessment methods for the evaluation of asylum procedures. It selects the focus point for the assessment of the decisions and provides samples of interviews and decisions to train quality assessors of the BFA accordingly. In 2018, two cases involving homosexual asylum applicants aroused public criticism. Social media reported that their asylum application had been rejected as untrustworthy, which led to an investigation and the responsible official of the BFA lost his license to decide upon asylum applications. The BFA acknowledged that the decision did not meet the necessary qualitative standards as regards language and wording used.[3]
In that context, the Austrian Queer base counselling centre criticised the fact that BFA employees were not adequately trained in that regard. The Ministry of Interior responded that there are ongoing training courses offered to BFA staff and highlighted that specific trainings on LGBTI rights had been planned even before the aforementioned scandal.[4] Since 2019, there is a course offered by the BVwG for its judges in cooperation with the LGBTIQ-organisation Queer Base. This is not mandatory for the judges. In addition, as part of the annual training programme for BFA employees a course presented by Queer Base is offered for dealing with particularly vulnerable groups in order to meet the special needs necessary sensitivity when identifying particularly vulnerable people and their special interests in the context of asylum and immigration law procedures.[5]
In the past there were several cases in which it became public that decisions of the BFA were based on personal views and involved biased questioning in interviews as well as stereotypes on gender and race.[6] In 2021, in one case in which the NGO Queer Base represented the applicant was made public: The BFA had used inappropriate and inadequate questions concerning the sexual life of the applicant and had made the applicant undress according to her.[7]
If an asylum seeker bases the fear of persecution on infringements of their right to sexual self-determination, they should be interviewed by an official of the same sex, unless requested otherwise.[8] In the procedure before the BVwG, this rule should apply only if asylum seekers have already claimed an infringement of their right to sexual self-determination before the BFA or in the written appeal. The Constitutional Court (VfGH) has ruled that a judge of the same sex has to decide on the appeal regardless of whether a public hearing is organised or the decision is exclusively based on the file.[9] A similar provision for interpreters is lacking, however.
Each member of a family has to submit a separate application for international protection. During the interview they are asked whether they have individual reasons to apply for protection or whether they want to rely on the reasons of one of their family members. Accompanied children are represented in the procedure by their parents, who are requested to submit the reasons on behalf of their children.
Exemption from special procedures
If it is deemed highly probable that the applicant has suffered from torture or other serious forms of physical, psychological or sexual violence, the application shall not be dismissed in the admissibility procedure.[10]
Moreover, asylum claims lodged by vulnerable asylum seekers (e.g. victims or torture or violence and unaccompanied children) should in principle not be processed in airport procedures. However, in practice, in the absence of effective vulnerability identification mechanism, vulnerable applicants continue to be subject to airport procedures. Moreover, vulnerable applicants may also be subject to accelerated procedures for national security reasons.[11]
[1] Answer to parliamentarian request, No 1571/AB, 2 November 2018, available in German at: https://bit.ly/2tt2bS5.
[2] UNHCR, Projekt Bidge, availalel in German at: https://bit.ly/2N5zfZ0.
[3] Wiener Zeitung, “Sie sind nicht homosexuell”, 15 August 2018, available in German at: https://bit.ly/2I9PtBD.
[4] Wiener Zeitung, ‚Heikle Fragen, Die Verfolgung wegen der sexuellen Orientierung ist ein Fluchtgrund. Für die Behörden ist diese schwer zu ermitteln‘, 17 September 2018, available in German at: https://bit.ly/2BxMZYc.
[5] Ministry of Interior, Answer to parliamentary request, 11559/AB XXVII GP, available in German at: https://shorturl.at/hklO5.
[6] See previous updates to this report: AIDA, Country Report: Austria, available at: https://bit.ly/489tH8z.
[7] Tiroler Tageszeitung, Anhaltende Schikanen für LGBTIQ-Personen in Asylverfahren, 22 April 2021, available in German at: https://bit.ly/381jXTD.
[8] Article 20(1) AsylG.
[9] VfGH, U 688-690/12-19, 27 September 2012, available in German at: https://bit.ly/42fVkdL.
[10] Article 30 AsylG.
[11] Information provided to asylkoordination österreich at a meeting with stakeholders, March 2023.