Case Regarding a Sierra Leonean National
|Publisher||Austria: Higher Administrative Court (Verwaltungsgerichtshof)|
|Author||Austrian Higher Administrative Court (Verwaltungsgerichtshof)|
|Publication Date||21 March 2002|
|Citation / Document Symbol||VwGH No. 2000/20/0189|
|Cite as||Case Regarding a Sierra Leonean National, VwGH No. 2000/20/0189, Austria: Higher Administrative Court (Verwaltungsgerichtshof), 21 March 2002, available at: http://www.refworld.org/docid/4040f0c54.html [accessed 29 November 2015]|
|Comments||Published on 8 July 2002.|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Austrian Higher Administrative Court
VwGH No. 2000/20/0189
I. Key Facts:
The complainant, a national of
II. Second Instance Decision:
The Austrian Independent Federal Asylum Senate (IFAS, second instance) rejected the appeal against the negative first instance asylum decision arguing that through his actions the asylum seeker had committed a serious non-political crime. The killing of two persons in an act of revenge constituted without any doubt a serious crime of a predominantly criminal nature. The fact that the asylum seeker had committed the offence shortly after the murder of his wife and the death of his mother did not change the nature of the act as a serious non-political crime. After all the asylum seeker had not immediately taken action against the offenders as a reaction to the murder of his wife, but only after several hours had he taken a weapon, searched for the rebels and shot two of them dead. Since the asylum seeker had in no way been attacked, he had not been in a situation of self-defence. On the basis of the facts and due to the criminal act of revenge committed by the asylum seeker he could not be granted asylum. It was obvious that the exclusion clause of Article 1 F (b) of the 1951 Convention relating to the Status of Refugees (in the following: 1951 Refugee Convention) was applicable. Therefore a determination as to whether the asylum seeker would be subjected to acts of persecution in his home country was no longer necessary in view of his detailed and undoubted explanations of the crime committed.
III. Main Legal Findings of the Austrian Higher Administrative Court:
According to Art 13 Austrian Asylum Law the granting of asylum is excluded where an exclusion ground stipulated under Art 1 (F) of the 1951 Convention is applicable.
Although an act as committed by the asylum seeker (the killing of two persons) can be considered a serious non-political crime, the complaint is well founded.
The authority proceeded against based its decision on Article 1 F (b) of the 1951 Convention, which was referred to for the first time in this proceeding. It based its decision on the facts established by the first instance authority without conducting any further investigation into the case.
The application of Article 1 F (b) of the 1951 Convention inherently requires an investigation of the facts, in which in any case the complainant would have had to be included, in order to come to a comprehensive determination of the circumstances of the case (including inter alia the need to take into consideration mitigation grounds, defences to criminal liability and "mens rea" as well as the requirement of determining the subjective seriousness of the crime). It is only possible to take into account all relevant factors of the act (see UNHCR Handbook, paragraph 157, and paragraph 45 of the 2001 UNHCR position paper on the interpretation of Article 1 of the 1951 Refugee Convention) and to comprehensively assess the evidence brought forward, if the asylum seeker knows that the procedure examines a particular exclusion ground and is given the opportunity to make a statement thereto (as to the asylum seeker's respective right to information and his right to an oral hearing see eg. Bliss, special supplementary issue of the International Journal of Refugee Law IJRL, Vol. 12, Winter 2000, 100ff). The authority proceeded against would have had to confront the asylum seeker with its assertion in the course of an oral hearing. In this oral hearing the complainant would have had the chance to set forth the facts on which his complaint is now based, namely that the killings had happened in the context of hostilities in which he had participated as a member of the military of
Moreover, in an asylum procedure it must always be determined whether, and in which way, the asylum seeker is threatened by persecution in the sense of Article 1 A (2) of the 1951 Refugee Convention. Therefore the authorities have to examine in every single case, whether the asylum seeker fulfils the criteria of this regulation. The decision proceeded against does not contain any statements to this effect. It does not explicitly reveal whether the authority proceeded against, by basing its decision on Art 13 (1) Austrian Asylum Law, had in contrast to the first instance authority affirmed the possibility that the asylum seeker feared persecution justifying the granting of asylum (compare to that effect the Higher Administrative Court decision No. 99/20/0372 of 31 January 2002 on the necessity of conducting a proportionality test when determining the applicability of Article 1 F (b), which requires to weigh the nature turpitude of the crime the asylum seeker is suspected of against the degree of possible harm from persecution the asylum seeker could be subjected to).
Instead, the authority proceeded against explicitly left unanswered the question as to whether the asylum seeker would be in danger of acts of persecution in his home country. Even under the assumption that he had committed a serious non-political crime, this contradicts the legal opinion of the
The decision proceeded against was consequently in accordance with Article 42 (2) 1 of the Higher Administrative Court Law to be annulled for illegality of its substance.