Case Regarding a Sierra Leonean National

Austrian Higher Administrative Court

VwGH No. 2000/20/0189

RULING

Vienna, Austria

21 March 2002

UNOFFICIAL SUMMARY

I.                     Key Facts:

The complainant, a national of Sierra Leone, entered Austrian territory on 21 August and applied for asylum on 27 August 1997. During his interview at the Federal Asylum Agency the asylum seeker stated that he had worked as a car mechanic in the army of Sierra Leone. After a rebel attack he found his wife dead and buried her in her hometown. When his mother received the message of his wife's death, she suffered a heart attack from which she died. The asylum seeker returned to the military camp thereafter, took a weapon and ran away with the intention to kill the persons who had murdered his wife. When he finally found the rebels he shot two of them dead but spared the others because he felt sympathy for them. He then ran for his life and left Sierra Leone. The asylum seeker stated that – despite the armed conflict – he would not have left Sierra Leone if his wife and mother were still alive. "Moreover", he claimed to fear revenge by the rebels. The first instance asylum authority rejected the application, arguing that the asylum seeker had not brought forward any reasons for flight justifying the granting of asylum. Moreover, the asylum seeker had already found safety in other countries, which he had transited on his flight.

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:

Paragraph (1)

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.

Paragraph (2)

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.

Paragraph (3)

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.

Paragraph (4)

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 Sierra Leone.

Paragraph (5)

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).

Paragraph (6)

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 Higher Administrative Court as laid down in its decision of 31 January 2002. By explicitly stating its view that acts of persecution against an asylum seeker in his home country are not relevant, the authority proceeded against has misinterpreted the law.

Paragraph (8)

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.

Vienna, 14 October 2003