Author
Asylum seekers undergo a mandatory medical examination in the initial reception centres (EAST).[1] In many cases, however, persons of trust are not allowed to be present during psychological consultations.
Medical reports are mainly requested in the admissibility procedure to assess whether an expulsion would cause a violation of Article 3 ECHR. Therefore, a standard form is used with space for a narrative. Medical reports are not based on the methodology laid down in the Istanbul Protocol.[2]
Some of the psychiatrists or medical experts are accredited by the courts, but have no special training on survivors of torture, do not apply the Istanbul Protocol, do not allow a person of confidence to be present during the examination or are biased. Therefore asylum seekers also submit opinions of experts of their own choice, which they normally pay themselves, although sometimes these opinions are covered by their health insurance.
The Administrative Procedures Act (AVG) requires the assessment of all relevant facts and imposes an obligation on the authorities to undertake all necessary investigations. Statements of the applicants have to be credible, persecution needs not be proved and preponderant plausibility is sufficient. If the authorities have doubts on whether the applicant has been subjected to torture or other serious acts of violence, a medical examination may be ordered. These examinations are paid by the state. Often asylum seekers submit expert opinions e.g. a report of the psychiatric department of a hospital where they have been treated or an opinion of a psychotherapist. In each federal state, a network of NGOs provides free psychotherapy sessions to asylum seekers, as these are funded by the Asylum, Migration and Integration Fund (AMIF). [3] However, in practice, capacities are insufficient and clients often have to wait several months to start the treatment.[4]
In appeal procedures against a decision of the BFA, new facts and evidence may be submitted only if the asylum seeker had been unable to submit those before the BFA. Negative first instance decisions are often based on the lack of credibility of the facts presented. To convince the Federal Administrative Court (BVwG) of the applicant’s credibility, expert opinions requested by the Court or submitted by the applicant may thus play a crucial role in the appeal procedure.
The Administrative High Court (VwGH) delivered a crucial decision in 2010 with regard to the consideration of medical evidence, in which it criticised the first instance authority for: “[N]eglecting to take into account medical reports as proof of psychological conditions, which consequently deprived the applicants of an objective examination of contentious facts…The responsible authority has thereby judged the applicants’ mental state without going into the substance of the individual circumstances.”[5] A psychiatric opinion was taken into consideration, which concerned the need to treat the psychiatric illness. Post-traumatic stress disorder (PTSD), illusions and concentration difficulties were diagnosed, but the opinion did not demonstrate to what extent those issues would influence the asylum seeker’s statements. Therefore, the authority believed that the asylum seeker should remember the exact date of the events reported.
The established jurisprudence of the VwGH requires exhaustive reasoning to deny the causality between alleged torture and visible scars, including through an expert opinion indicating the likelihood of alleged torture causing the visible effects.[6] In the same ruling, the Court repeated earlier jurisprudence to the effect that psychiatric illness has to be taken into account in regard to discrepancies that have been identified in the statements of an asylum seeker.
[1] Article 28(4) AsylG.
[2] United Nations Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2004 (Istanbul Protocol), Professional Training Series No. 8/Rev.1.
[3] Network for Intercultural Psychotherapy and Extreme Trauma (NIPE), see official website available in German at: https://bit.ly/2HDlkaH.
[4] Information provided by organisation Hemayat to asylkoordination in February 2024.
[5] VwGH, Decision Ra 2007/19/0830, 19 November 2010.
[6] VwGH, Decision Ra 2006/01/0355, 15 March 2010.