Special procedural guarantees

Austria

Country Report: Special procedural guarantees Last updated: 30/11/20

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Asylkoordination Österreich Visit Website

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 counseling center 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] However, no additional training seemed to have been provided at the time of writing.

The OHCHR report of 2018 also confirmed that, in a number of cases obtained, negative decisions made by the BFA were based on personal views and involved biased questioning in interviews as well as stereotypes on gender and race. Gender-specific considerations are not systematically adopted in practice, e.g. by ensuring that women are interviewed without the presence of male family members. Even when the information about sexual orientation of individuals was not disputed, there have been cases where gay people were returned in fast-track-procedure to countries considered as “safe”, yet criminalising homosexuality.[5]

Another similar case concerned an asylum seeker who claimed that he had been threatened in Gambia because of his homosexuality. This claim was considered not credible by the BFA. After having analysed the reasoning of the decision and because the particular circumstances of the case were not taken into consideration, the VfGH concluded that the necessary administrative standards were not met.[6]

Article 30 AsylG also states that particular attention should be paid to the asylum seekers’ specific needs throughout the asylum procedure, although the concept of “adequate support” is not defined or described in the law. Although the 6-month time limit to decide on an asylum application for international protection is sufficient to identify such specific needs, this is not applied in practice. In cases concerning unaccompanied children, the BFA often failed to issue a decision within due time.

If an asylum seeker bases the fear of persecution on infringements of his or her right to sexual self-determination, he or she should be interviewed by an official of the same sex, unless requested otherwise.[7] 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.[8] 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.[9]

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, accelerated procedures for national security reasons may be conducted even in cases where they concern such applicants.

 


[1]   Answer to parliamentarian request, No 1571/AB, 2 November 2018, available in German at: https://bit.ly/2tt2bS5.

[2]  UNHCR, Projekt Bidge, availabel 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]  OHCHR, Report on the mission to Austria focusing on the human rights of migrants, particularly in the context of return, October 2018, available at: https://bit.ly/2u4JoQE, 8.

[6]  VfGH, Decision No E2786 / 2018-16, 26 November 2018.

[7]  Article 20(1) AsylG.

[8]  VfGH, U 688-690/12-19, 27 September 2012.

[9]           Article 30 AsylG.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation