TransAct 45

TransAct statement

Decision 201.132/25-II/04/99 20000110, by Dr. Balthasar
Norm Asylum Act 1997 §7 Asylum Act 1997 §12

The Independent Federal Asylum Board, represented by Dr. BALTHASAR, has, in accordance with § 66 Abs. 4 AVG iVm § 38 Abs. 1 of the Asylum Act 1997 Austrian Federal Law Gazette. I Nr.4/1999 (Asylum Act), after public oral hearings on 7.6., 24.11. and 10.12. 1999, ruled:
I. The appeal of S. J. on 04.12.1997 against the ruling of the Independent Federal Asylum Board on 13.11.1997, ZI 97 05.075-BAT, is upheld and S. J. granted asylum in accordance with § 7 of the Asylum Act. In accordance with § 12 leg. cit. it is ruled that S. J. is accorded refugee status under the law.

The appellant [Mrs. J. S. Children: J. S. J. P., accommodated at a care centre of the Ministry of the Interior A-4362 Bad Kreutzen] presented the reasons for her application for asylum at her hearing as follows: "I am an Afghani citizen, a Moslem, widowed since 1985 and a member of the Pashtunian ethnic group. My husband died during the war in Afghanistan. In Afghanistan it is the custom that after the death of her husband a widow must live with her brother-in-law. Because I did not want this, my brother-in-law took my son away from me after the death of my husband – From 1986 until 1992, when Nadjibullah fell from power, I was a member of the Democratic Khalgh Party. In September 1996 when the Taliban marched into Kabul, they forbade a woman to walk the streets unaccompanied by a man. Furthermore, I would have been endangered even more if I had gone to my workplace and demanded my salary. The Taliban would have certainly arrested me and imprisoned me. I had heard of cases where female former civil servants were murdered by the Taliban. I moved . We left my father in Kabul because we did not have enough money for all of us. My reason for fleeing was that, since the Taliban had seized power, I was afraid that my two daughters would be kidnapped and forced to marry, since the Taliban passed a law that girls aged 10 and over must get married. And I was afraid that the Taliban would pick me up and murder me because I had worked as a civil servant and was a member of the Khalgh Party. For the Taliban my 'previous life' was certainly a reason to murder me. Therefore I decided to start a new life in another country where it would be possible for my daughters to receive a proper education and where I could work without the threat of persecution."

This plea was judged as follows in the first instance in the ruling against which this appeal is made: "She was unable to present any circumstances which would justify the supposition that she was personally subjected to persecution in her home country as defined by the Geneva Convention on Refugees, that is on grounds of race, religion, nationality, belonging to a particular social group or because of her political beliefs. It is incomprehensible that a person who is afraid of being murdered should wait for one year before removing themselves from the direct reach of the persons who are threatening them. On the basis of the above-mentioned pleas it is not admissible to grant you the refugee status which is required for the granting of asylum, and therefore the granting of asylum is, in your case, out of the question."

In order to clarify the relevant facts of the case, the Independent Federal Asylum Board heard a public appeal and called an expert witness. In addition to general background information the expert witness report contains the following answers: in my opinion the statements of the appellant are consistent with her career: 1. She described her career accurately. 2. From the Farsi expressions which the appellant used, I was also able to conclude that her way of expressing herself was consistent with that of an educated civil servant. She had obviously acted against traditional norms.

The following supplementary remarks are also found here: "The expert witness adds the additional comments about Point VI/question 1/line 2, that he remembers and refers to two expressions used by the appellant on 7.6.99; these were a) the expression 'Zarandoy' which means 'police' and is a term taken from Paschtu which originally meant 'boy scout' and which was propagated by the regime in 1978 but which never became popular; b) that the appellant was expressly against the marriage projected by her deceased husband's family to her 80 year-old brother-in-law, which is something that a woman who was attached to traditional Afghan lifestyle and way of thinking would never have done. The Independent Federal Asylum Board considered: . the only question to be weighed in this appeal is whether, in accordance with § 7 of the Asylum Act, it is "plausible" that the appellant is threatened by dangers relevant to asylum law in her country of origin at the present time.

"Plausible" means that the threat is considered to exist when there are more reasons for its existence than for its non-existence. The member ruling on this case considers that this condition has been proved: since "for unofficial persons" such as the appellant the country may still not be entered through any official customs post it is therefore sufficiently "plausible", in accordance with § 7 of the Asylum Act, that in the case of her return, the appellant would suffer both direct persecution by the Taliban to an intensity relevant to asylum law and also – due to a lack of prospects to be able to work combined with a lack of support from those "tribal societies" and combined with the fact that the exclusive support of the appellant's 67 year-old father, who lives in Kabul at the centre of Taliban power, appears neither without danger nor assured for long enough, it can only be supposed that she is threatened with a complete loss of a means of earning her living. Therefore the conditions required under § 7 Asylum Act for the granting of asylum to the appellant exist at the present time, therefore the appeal is upheld and the ruling made in accordance with § 12 Asylum Act.

This decision was announced publicly on 10.12.1999.

Decision 206.350/8-II/o4/99 19990601
By Dr. Balthasar
Norm Asylum Act 1997 §6 Asylum Act 1997 §8

The Independent Federal Asylum Board, represented by Dr. BALTHASAR, has, in accordance with ruled:
"I) The application for asylum by A. U. (also A.) S. on 20.7.1998 has, in accordance with § 6 Z 3 Asylum Act, been rejected as clearly unfounded.
II) The sending back or deportation of A.U. (also A.) S. to Bangladesh is permitted by law in accordance with § 8 Asylum Act."

The present appeal is against this ruling and contains the following argumentation against part I of the ruling: "The Asylum Board has overlooked that an application for asylum can only be rejected as obviously without grounds if it is obvious and explicit that the application for asylum is without any foundation. I have already made clear that, as a member of the BFP, I regularly took part in demonstrations. At our party's demonstrations on 15.6.98 and on 17.6.98 there were violent attacks by members of the Awami League in which many people were injured. Following this, I was charged with causing bodily harm and the police began searching for me in my home country. The charge is merely an excuse to persecute me on account of my political activities. Numerous reports have shown that people disappear in prison in unexplained circumstances or are found dead. There are also frequent targeted attacks against politically active people who have been shot on the streets or who disappear and are never found. Anti-government demonstrations are generally forbidden in my home country, which contradicts the basic right of assembly. There are peaceful demonstrations every month in Bangladesh and people are arrested every time there is torture in police custody and extralegal executions. The board ruling on this case concludes that Bangladesh has been a parliamentary democracy based on the English model since 6.8.91. Furthermore, on page 2 of the above mentioned ruling, the ruling board states that all citizens are treated equally under the law and that there is a well-organised and efficient system of justice. It is, however, the fact that the police work together with the ruling party and that political opponents are often imprisoned for months without trial. This is evident from the above-mentioned reports. Proof: my personal questioning, statements and reports obtained from UNHCR, Amnesty International, Germany, and the Ludwig Boltzmann-Institute for Human Rights confirming my statements about the threat of my being persecuted and the situation in my home country. The ruling board states that my identity cannot be confirmed due to a lack of available documents. . I am expecting to receive my documents in about three months and I will pass them on to the board as soon as I receive them.

The Independent Federal Asylum Board held that the appellant was recorded as having made the following statements; Question: According to your previous experience, how healthy is the available drinking water in Bangladesh? Please give a concrete answer to this question with a view to your possible return to Bangladesh. Answer: I don't think that the quality of the drinking water is so special. When there are floods, the water in the villages is not fit to drink. 1st supplementary question: What means do you know to remove the danger to health of this water? Answer: I must do something, and that is to cook it before drinking it. Then it is no longer a danger to health.
The Independent Federal Asylum Board held: on ruling I: In accordance with § 6 Asylum Act applications for asylum under § 3 are to be rejected as clearly unfounded if they clearly contain no grounds since they were of the opinion that the evidence of the asylum applicant allowed "no evidence of persecution relevant to asylum" in his country of origin to be deduced . The asylum applicant had already stated with sufficient clarity in the hearing of the first instance that the "charge of illegal possession of arms" was politically motivated. In accordance with this, the current application for asylum may not be rejected with reference to § 6 Z 2 Asylum Act. However, according to the supplementary statements of the Independent Federal Asylum Board during the hearing, the evidence of the applicant is so implausible that this application for asylum § 6 Z 3 Asylum Act is to be subsumed. It should firstly be pointed out that the three-month deadline set by the applicant himself at his hearing on 21.10.1998 has now passed – without the applicant actually producing these documents. the realisation that this "further evidence" is implausible stems from the fact that the applicant was clearly not in a position to name the leader of the Freedom Party without looking at the print medium he had brought to the hearing with him. The Independent Federal Asylum Board is therefore in no doubt that the contentions of the applicant – obviously do not correspond to the facts.

On Ruling II: In this case the Independent Federal Asylum Board did not accept, under § 57 Abs. 1 FrG, the dangers facing the applicant upon return to Bangladesh, recognised the efficiency of the Bangladesh judiciary, and held that dangers as defined by § 57 Abs. 1 FrG are not of sufficient intensity and furthermore that the applicant, on being questioned, stated that the quality of the available drinking water in Bangladesh was not "so special", but that damage to health could be avoided by boiling the water before drinking it.
The Rulings are therefore upheld.

This decision was announced publicly on 29.1.1999. The delay of several months in the written report is due to the fact that the file came into contravention in the meantime.

Ferdinand Schmatz,

Vienna, July 2K