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Austria
Country of Decision : Austria
Court Name : AT: Federal Administrative Court [Bundesverwaltungsgericht - BVwG]
Date of decision : 30/04/2020
Type : Decision
ECLI : AT:BVWG:2020:W186.2230502.1.01
Case Number/Citation/ Document Symbol : W186 2230502-1

Applicant (Afghanistan) v Austrian Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl- BFA)

Afghanistan

AT: Federal Administrative Court grants suspensive effect to appeal on return decision due to risk for applicants in India, related to the COVID-19 pandemic

The applicants (one couple and their daughter) had applied for international protection on 8 January 2020 before the Federal Office for Immigration and Asylum and claimed that it would be dangerous for his Hindu family to return in Afghanistan because they were a minority and that their two sons had also fled, reason for which they had decided to go to see their children. In addition, the daughter stated that the situation in Afghanistan was very dangerous for young girls as they are constantly being kidnapped, raped and mistreated, which is why she would not have felt safe there. 

The applicants were then questioned in writing on 11 February 2020 by the Federal Office for Immigration and Asylum. The Federal Office informed the applicants that based on an extract from the VIS system, their procedure would be checked with India as their country of origin. All three applicants stated that they are Afghan nationals and on 25 February 2020, the applicants were again questioned in writing before the Federal Office, where the first applicant was also questioned about his state of health. The applicant stated that he was Afghan and did not agree to have his case examined in relation to India as country of origin. The second applicant submitted medical documents and the daughter presented a Tazkira (national ID card in Afghanistan) and stated that she was not Indian. The determination of Indian citizenship was mainly based on a VIS excerpt, according to which the applicants had given their fingerprints when they applied for a visa on 5 April 2019 at the Austrian embassy in New Delhi.

By decision of 31 March 2020, their applications for international protection were rejected and a return decision to India was issued. The Federal Office found that the applicants had entered the Schengen area with an Indian passport and an Austrian visa and did not suffer from any serious or life-threatening illness that would prevent the removal and return to India.

On 24 April 2020 the appeal was submitted to the Federal Administrative Court which decided to grant suspensive effect in accordance with Section 18 (5) BFA-VG. The Federal Administrative Court stated that the applicants would, upon return to India, be exposed to a real threat to their life and physical integrity due to the COVID-19 pandemic and both applicants  (the parents) would fall into the risk group with regard to their age, and previous illnesses. There are also further indications that the Federal Office has examined the procedures of the applicants with regard to the wrong country of origin despite the applicants stated to be Afghans. For these reasons, the granting of suspensive effect of the appeal appeared necessary in order not to thwart the purpose of the procedure and that the country of origin of the applicants could be determined. It should be noted that also with regard to a return to Afghanistan, the applicants would be exposed to a high risk due to the Covid-19 pandemic.

Afghanistan; Assessment of Application; Country of Origin Information; COVID-19/Emergency measures; Family Reunification; Return/Removal/Deportation;

EU Charter of Fundamental Rights ; European Convention on Human Rights; Return Directive (Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals);

EASO IDS

Austria, Federal Administrative Court [Bundesverwaltungsgericht - BVwG], Applicant (Afghanistan) v Austrian Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl- BFA), W186 2230502-1, AT:BVWG:2020:W186.2230502.1.01, 30 April 2020. Link redirects to the English summary in the EASO Case Law Database.

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=1458