What are the CCTS Tatarstan Relationships
REASONS FOR DECISION:
Asylum procedure in Poland
I.1. The complainant, her daughter and their children applied for asylum in Poland on November 18, 2005. In the Polish asylum procedure, the applicant stated that she had left her country of origin because of her health situation and that she was applying for asylum in Poland because she wanted medical treatment.
1. Asylum procedure in Austria
1.2. The complainant, her daughter and her children arrived illegally in Austria at a time that could not be ascertained and the complainant, like her daughter and her children, submitted her first application for international protection in the federal territory on December 6, 2005, number 05 21.280-BAL . In the written application for asylum in Austria, the complainant stated that she and her daughter had been threatened and persecuted because of the complainant's son. Federal soldiers came along with the sixth division that night, broke open the doors and asked where their son was. It was threatened to take the complainant and her daughter with them instead of the son. The complainant was beaten the last time. As evidence, the complainant presented her Russian national passport, issued on July 8, 2004, as well as a bundle of medical reports and confirmations from Russian doctors and hospitals.
On December 9, 2005, the complainant was questioned in writing by an administrator at the Federal Asylum Office, First Reception Center West, in the presence of an interpreter for the Russian language and stated that she suffered from a chronic intestinal disease, high blood pressure and had a cyst in the uterus. She also has liver problems. She left her country of origin on November 13, 2005 and traveled to Austria via Poland, where she was picked up by the police and briefly stopped. When asked about her reasons for fleeing, the complainant stated that she had repeatedly been visited by masked federal authorities because of her son. During the last visit on November 5th, 2005, these men would even have kicked the front door and shot. They had threatened to take the complainant's daughter with them if she did not reveal where the complainant's son, who lived in Austria, was. One of the complainant's son is already dead and another relative has disappeared. The complainant did not know whether she had applied for asylum in Poland. She signed some papers. She doesn't want to go back to Poland, where she is afraid.
On December 13, 2005, a resumption request was made to Poland in accordance with Article 16 (1) (c) of Regulation (EC) No. 343/2003 of the Council (Dublin II). In a letter dated January 5, 2006, the Polish authorities declared that they were ready to take the complainant back and examine her application for asylum.
In the expert opinion in the approval procedure, a doctor specializing in general medicine and psychotherapeutic medicine diagnosed on December 22nd, 2005 that the complainant did not have a mental disorder that would prevent her from perceiving her interests in the procedure or, with the predominant probability, the risk of permanent damage or of long-term consequences in the case of transfer to another member state of the European Union.
The complainant was questioned in writing at the Federal Asylum Office on December 23, 2005 and stated in summary that the information given in her first interview was true. She had been operated on (gall bladder and spleen) because soldiers hit her with a rifle butt. Masked men had come in armored vehicles, asked about their son and hit the complainant. She then had seizures and was taken to the hospital. She also has many other diseases and needs treatment. She had already received treatment in the Russian Federation.
After the procedure was approved, the complainant was questioned in writing on March 7, 2006 at the Federal Asylum Office, in the presence of an interpreter for the Chechen language, and when asked about her health situation, she stated that she had abdominal pain, liver pain, blood pressure problems and also heart pain. However, the complainant was not receiving medical treatment, but had only seen a doctor once in Austria. When asked about her reasons for fleeing, the complainant stated in summary that since 2002 masked, uniformed people had repeatedly come to the complainant's home, asked where fighters were and whether the complainant had any connections to fighters. Until they left, these men had come back again and again, sometimes once a month, sometimes every two or three months. In April 2002, her son XXX was arrested on the street by Russian soldiers and has since disappeared. Her son I was arrested around the summer of 2003 and held for 20 days. In 2004 he was arrested again. On June 7th or 8th, 2004, I [...] came to the marketplace where the complainant had worked and reported to her that he had seen a military car in front of her house. The complainant then advised I [...] not to go home, as she had already seen these cars in the morning and it would be too dangerous for him. When the complainant came home, soldiers were everywhere, asked for her passport, checked the apartment and asked for I. Kalashnikov bullets belonging to her son, who has a gun license, were also found in the apartment. The complainant then went to her son's boss and asked him for help. But he couldn't do anything for them. The complainant then went into hiding for two months. That day in June 2004 she saw her son I for the last time. I left the Russian Federation in June 2004. Her nephew XXX was arrested on the same day and has been in prison ever since. In autumn 2005 there was a trial and XXX was wrongly sentenced to seven years in prison. The complainant and her daughter were repeatedly asked by Russian soldiers about the whereabouts of I [...] until they left the country in November 2005, since they [...] were accused of being connected to resistance fighters. At the beginning of November 2005, the soldiers came for the last time, shot at the door and searched the apartment. Finally, the complainant left her country of origin with her daughter.
According to the findings and expert opinion of a general practitioner dated June 18, 2007, the complainant suffered from moderate high blood pressure, nodular goiter (goiter) of the thyroid gland, chronic gastritis and chronically recurring gastritis - after reviewing the findings, questioning the complainant and consulting her family doctor ) A headache. In the report, the doctor stated that due to the diagnoses and health complaints, constant medical care was necessary. At the moment, care by the family doctor is sufficiently guaranteed. Based on the available findings from the country of origin, it can be assumed that adequate medical care is also guaranteed there.
The complainant was questioned in writing on 11.11.2008 at the Federal Asylum Office, in the presence of an interpreter for the Russian language, and when asked about her health situation, she stated that she suffered from rheumatoid arthritis, chronic gastritis and a stomach ulcer. But she is not under constant medical treatment and only goes to the doctor when she is in pain. When asked about her reasons for fleeing, she also stated that she had received a summons from the sixth department on November 12, 2005. Masked men had delivered the summons in the middle of the night and asked the applicant to appear in the sixth ward the next day and to disclose the whereabouts of her son, otherwise her daughter would be taken away. When specifically asked, the complainant further stated that she had been beaten by federal soldiers in March 2003. The soldiers searched her house and asked for XXX, a cousin of her husband. This is currently lost. They also asked about her son.
On March 19, 2010, the complainant received a statement from the Federal Asylum Office. The complainant stated that there was a dictatorship in Chechnya. Any expression of opinion against the government will be prosecuted and punished. If someone had anything to do with resistance fighters at any time - be it he supported them or was friends with them - that person was in danger.
With the decision of the Federal Asylum Office dated May 12, 2010, number 05 21.280-BAL, the applicant's asylum application was rejected in accordance with § 7 AsylG 1997 (point I.) and the rejection, deportation or deportation to the Russian Federation in accordance with
Section 8 (1) AsylG 1997 declared admissible (point II.). Pursuant to Section 10, Paragraph 1, Item 2 of the Asylum Act 2005, the complainant was expelled from Austria to the Russian Federation (point III.). In this decision, the Federal Asylum Office established the identity and nationality of the complainant and made extensive country determinations on the situation in the complainant's country of origin. In this decision, the Federal Asylum Office stated that the complainant's presentation of the facts was worthy of evidence - she had left her home because masked, uniformed people asked her about resistance fighters and the whereabouts of her son XXX, in this context searched the complainant's house, threatened and would have beaten - will be assessed as inconsistent with the facts due to divergences, inconsistencies or inconsistencies. In the course of the proceedings, the complainant had given divergent information and presented the threat situation in different ways. There are also divergent statements about the situation of persecution at home between the complainant and her son XXX. It is also in no way conclusive that, according to her statements, the complainant had been affected by acts of persecution since 2002, but did not leave her home until three years later. The complainant was also to be accused of having tried to gradually increase the threat situation in the interrogations. Furthermore, there were disagreements with regard to the summons by the sixth department and diverging information from the complainant's daughter was also clear in this regard. With regard to the conviction of relative XXX, the applicant presented an extremely vague and poorly detailed story. Finally, it should also be mentioned that in the context of the application in Poland, the complainant merely submitted that she had applied for asylum because of her health situation and because she wanted medical treatment. Overall, therefore, it can be assumed that the complainant's submissions were not credible. It cannot be inferred from the submission that the complainant was exposed to the risk of asylum-related persecution in the Russian Federation. In the proceedings of the daughter and her children, decisions were made at the same time and with the same content.
A complaint against the decision of the Federal Asylum Office dated May 12, 2010, number 05 21.280-BAL, was filed in a timely manner in a written statement dated May 28, 2010 due to the illegality of the content and the inadequacy of the procedure, as well as incorrect and missing facts due to incorrect assessment of the evidence. With regard to the reasons for her complaint, the complainant referred to the complaint of her son I [...] and raised it as part of her complaint. The complainant also wanted to comment that a friend now lived where she lived and that two to three months ago civilians had come there and asked about their son.
On July 13th, 2010 a supplement to the complaint was received by the Federal Asylum Office. In it, the complainant essentially repeated her previous submissions and commented on the inconsistencies and contradictions held against her in her interrogations. Furthermore, she presented a bundle of photos from the years 2002 to 2004 showing her apartment in [...].
With the decision of the Asylum Court of 11.01.2011, number D12 413639-1 / 2010 / 4E, the decision of the Federal Asylum Office of 14.05.2010, number
05 21.280-BAL, lodged complaint according to §§ 7, 8 Abs. 1 AsylG 1997 and
§ 10 para. 1 no.2 AsylG 2005 dismissed as unfounded. This finding summarizes the nationality, ethnic group and identity of the complainant. It is also established that the complainant entered the Austrian federal territory illegally and made an unfounded application for asylum. The complainant suffers from moderate high blood pressure, nodular goiter (goiter) of the thyroid gland, chronic gastritis and chronically recurrent (recurring) headaches. However, the complainant does not have any physical or mental illness that would constitute an obstacle to a return to the Russian Federation. At no time during her stay in Austria did the complainant have a right of residence that was not based on the asylum procedure. On the basis of the complainant's submissions, it could not be determined that the complainant would face persecution in the Russian Federation on grounds of race, religion, nationality, membership of a certain social group or because of her political views. In the opinion of the Asylum Court, the conditions for a current risk of persecution were not met for a reason given in the Geneva Refugee Convention. It could not be established that the complainant in the country of origin had a real risk of a violation of Art. 2 ECHR, Art. 3 ECHR or Protocols No. 6 or No. 13 to the Convention or a serious threat to life or integrity as a result of arbitrary violence would threaten in the context of an international or domestic conflict. Despite family ties in Austria, the expulsion of the complainant was urgently justified in order to achieve the objective stated in Art. 8 (2) ECHR. The expulsion of the complainant did not constitute an inadmissible interference with the complainant's private and family life. This was followed by country determinations on the relevant situation in the Russian Federation / Chechnya. According to the Asylum Court, the complainant's submission was to be assessed as inconsistent with the facts and therefore as implausible due to divergences and inconsistencies or inconsistencies in her statements. The complainant's arguments regarding a situation of persecution in Chechnya during the interrogations at the Federal Asylum Office diverged or had been presented differently. In the initial interview, the complainant had stated that she had left her country of origin because of her son, as she had been constantly visited by masked federal officials. In a further questioning, the complainant had confirmed her previous information, but added that she had been hit by the soldiers with a rifle butt and was therefore taken to the hospital. In the subsequent interrogation, the complainant not only described her reasons for fleeing in more detail, but also mentioned specific incidents that led to her departure. She had stated that at the beginning of March 2002 she had been visited by masked uniformed and armed people at home and asked about resistance fighters. After that there were regular incidents of this kind. Finally, the complainant had also stated for the first time that her son XXX had been arrested in April 2002 and has since disappeared and that her other son I [...] had been stopped for 20 days in summer 2003 and taken away again in 2004. In the later interrogation, the complainant therefore mentioned more specific events that triggered the escape than in the first interrogations or events, such as the two arrests of her son, only described in the interrogation in front of the branch office. It corresponds to the constant judicature of the Administrative Court if reasons that led to leaving the home country or country of origin are generally not regarded as credible if the asylum seeker, in the course of the proceedings - written interviews - differently or in the course of the proceedings, which in his opinion justifies asylum even contradictory if his statements correspond to the course of events corresponding to the experience or with actual circumstances orEvents are incompatible and therefore appear improbable or if he only presents relevant facts very late in the course of the asylum procedure (VwGH 6.3.1996, 95/20/0650).
The judging Senate of the Asylum Court was of the opinion that the information given closer to the time of the escape deserved more credibility than the information given later. This also corresponds to the judicature of the VwGH, according to which, in the context of the assessment of evidence, the information provided by the complainant in his first questioning should be given greater credibility than later submissions. Experience has shown that asylum seekers spontaneously provided the information that comes closest to the truth, especially at the first interview. It was also in no way comprehensible to the responsible Senate why the complainant had not already mentioned the arrests of her son in her interviews at the initial reception center, especially since these were reasons relevant to the departure. In this context, reference was made to the divergent statements on the persecution situation at home between the complainant and her son I. The applicant had stated that her son had been arrested twice, namely once in 2003 and then again in 2004. In his asylum procedure, however, I [...] had only indicated one arrest that he had timed to May 2002 have classified. He did not say in any way that he had been arrested again. In the supplement to the complaint, these contradictions were explained to the effect that the complainant had meant she was taken away in 2002 when her son had been detained for two to three weeks, not in 2003. At that time, she would have been in hospital, so she did not witnessed. She only found out about the second take in 2004. These explanations were not convincing, especially since the complainant - contrary to her son - spoke of two takings. Particularly noticeable was the fact that the complainant referred to XXX as her son at the beginning of her proceedings, but corrected her submission during the subsequent interrogations to the effect that this was her deceased husband's cousin. When asked about this, the complainant stated that she considered XXX to be her son. She referred to XXX as her son after the death of her younger son XXX. In addition, it was stated that the applicant had never previously mentioned that she had a deceased son named XXX. In addition, her son I [...] once stated in his asylum procedure that XXX was his brother, then again, that it was his cousin - and not his father's cousin. Such contradicting information about family relationships gave the impression that it was a constructed story. It was also worth mentioning that the complainant gradually increased her threat situation in the course of the asylum procedure. When she was questioned on March 7, 2006, she expressly stated that there were no resistance fighters in her family or that there was no contact with resistance fighters. On 11/11/2008, however, the complainant stated that XXX, whom she describes as a son, had supported resistance fighters. It was incomprehensible and lacked general logic as to why the complainant had not mentioned this fact earlier in the proceedings, especially since it was a relevant detail.
With regard to the summons from the sixth department mentioned by the complainant, it had to be stated that there were also inconsistencies in the statements in this regard. In the interrogation on December 9, 2005, the complainant briefly stated that she was still in possession of this summons in Poland, but that it had been lost, but in the interrogations that followed she had not mentioned the summons in any way. The Federal Asylum Office had therefore rightly concluded that this summons was not relevant for the complainant's departure. In the interrogation on November 11, 2008, the complainant suddenly stated that it was precisely this cargo that was the reason for her departure and that the circumstances of the delivery of the cargo were described in detail, including that this cargo was handed over to her on November 12, 2005. Against this it had to be countered that the information provided by the complainant that she had last been in contact with the federal authorities on November 5, 2005 did not match the information that the summons was handed to her on November 12, 2005. In this regard, reference should also be made to the contradictions between the complainant's statement and the information provided by her daughter in her asylum procedure. While the complainant stated that her daughter was at home when the cargo was delivered on November 12, 2005 by two uniformed men, the daughter had stated that she had not seen who had brought the cargo. The post office would not work at home and so they would not know which person had delivered the cargo. According to the information provided by the complainant, the daughter had stated unconvincingly that she could not remember it.
Following the Federal Asylum Office, the complainant also described an extremely vague and poorly detailed story with regard to the conviction of her relative XXX. The information on this was exhausted in a brief framework story and the complainant was not even able to state which specific criminal offenses XXX had been accused of. If the complainant had actually been present at the court hearing, she would undoubtedly have been able to answer this question, especially since the criminal proceedings in Chechnya are also being used to explain which criminal offense the defendant was charged with. The judging Senate also assessed the situation to the extent that the complainant referred to an incident that actually took place, namely the conviction of XXX, which was carried out according to the surveys on the spot, in order to construct a story that was supposed to secure her stay in Austria. As part of the supplement to the complaint, the complainant had argued that the Federal Asylum Office's assessment of evidence was evidently based on the decision-making administrator's lack of knowledge of the actual situation in Chechnya, since constructed crimes and unfair proceedings were the order of the day there. The offense would not be fully set out and discussed, and it would not be shown through various pieces of evidence which offenses were charged. This was countered by the fact that even in the case of fabricated crimes and unfair proceedings, a judgment was pronounced and the - even if fabricated - crime was named by name. The complainant's arguments were therefore ineffective.
Finally, it was also mentioned that the complainant had already applied for asylum in Poland and in the course of this application or the Polish asylum procedure had merely stated that she was ill and that she would like to receive medical treatment in Poland. It was completely undecided why she would not have mentioned her escape story - presented in Austria - at least in part in Poland if she had actually been subjected to asylum-related persecution in her country of origin.
Finally, it was pointed out that the information provided by the complainant's son in the context of his asylum procedure due to divergences, inconsistencies or inconsistencies in his statements and due to the incompatibility with the survey results in his home country were assessed as inconsistent with the facts and therefore as untrustworthy. Since the complainant based her allegations of escape mainly on the persecution of her son or attributed her problems with the Russian authorities to the fact that her son was wanted, the persecution scenario described by the complainant and based on it was therefore also to be regarded as implausible for that reason alone been.
The following had to be said about the complainant's health situation: The complainant had submitted various medical reports and confirmations from Russian doctors and hospitals as part of her application for asylum. That is why the Federal Asylum Office commissioned an expert opinion on the complainant's current health status and the treatment options in the event of a return to her country of origin. After the complainant's exploration, assessment of the original findings brought with her from the country of origin, as well as their translation and after telephone consultation with the complainant's family doctor, Dr. [...] stated in the report dated June 18, 2007 that the complainant suffered from moderate high blood pressure, nodular goiter (goiter) of the thyroid gland, chronic gastritis and chronically recurrent (recurring) headaches. Due to the existing diagnoses and health complaints, constant medical care by the family doctor is required. At the same time, it was stated that, based on the available findings from the country of origin, it could be assumed that adequate medical care was also guaranteed there. This assessment coincided with the state statements made in the decision of the Federal Asylum Office regarding medical care in Chechnya, according to which basic medical care is provided, albeit in a very simple form. During the interview in November 2008, the complainant stated that she was still suffering from the diseases set out in the report. However, she is not under constant medical treatment and only goes to the doctor when she is in pain. She could not present current documents regarding her illnesses. She is also not receiving psychological treatment in Austria. The ruling Senate therefore came to the conclusion that the complainant did not have an acute, serious or life-threatening illness that would prevent the complainant from being deported to the Russian Federation. If the complainant continues to require medical care with regard to her illnesses that existed before she entered Austria, she will receive this in her country of origin - as she did before she fled the Russian Federation. In line with the case law of the European Court of Human Rights, the Asylum Court assumed that, in connection with reasons of illness, deportation would only be inadmissible in the case of an illness threatening the existence of the person and in the absence of any treatment options within the meaning of Art. 3 ECHR. In the Russian Federation, on the basis of the evidence on file, this could generally not be accepted, there was sufficient basic medical care within the meaning of the case law of the ECHR, nor could this be accepted in the specific case of the complainant. With regard to the health problems brought forward by the complainant or the medical reports submitted, reference was made to the assessment of the evidence and it was stated that the complainant did not have an existence-threatening illness within the meaning of the case law, which would put the complainant in an "inhuman situation" when returning to the Russian Federation. would move.
Regarding the care and accommodation of the complainant after returning to the Russian Federation: The complainant has family ties in the Russian Federation. Her mother, brother and sister were still living in the Russian Federation and would be able to help the applicant return. The complainant was also a woman of working age who had worked as a grocer in a market before leaving the Russian Federation. She will therefore be able to provide for her own living if she should return. The aim of the refoulement protection is not to protect people from unpleasant life situations, such as building a livelihood in the Russian Federation, but to provide protection from life situations that would be covered by the norms listed in § 50 FPG. No circumstances are known which would place the complainant in an "inhuman situation" after her return to the Russian Federation.
The son of complainant I [...] (complainant D12 253505-2 / 2010), the daughter of the complainant (complainant
D12 413638-1 / 2010) and their children (complainant D12 413637-1 / 2010,
D12 413636-1 / 2010 and D12 416597-1 / 2010), who are also asylum seekers and who have also been expelled with the findings of the Asylum Court from today. In the present case, the underage, four-year-old grandson of the complainant (AIS number 06 12.246) also lives as a recognized refugee in Austria. The complainant's son and his son's mother [...] have joint custody of his son. The complainant lived with her son and the minor grandchild in the same household and looked after her grandson. In the so-called "extended family life", with grandparents, siblings, uncles, aunts, etc., an "effective family life" is required, which has to be expressed in the management of a common household, the existence of a relationship of dependency or particularly close, actually lived ties see Feßl / Holzschuster, Asylum Act 2005, Commentary, page 343 f). There is thus a family life and expulsion of the complainant would constitute an interference with her family life.
An existing private life of the complainant was also to be affirmed due to her five-year stay in Austria. It therefore remains to be examined whether the encroachment on the complainant's private and family life associated with the expulsion is justified. According to Art. 8 (2) ECHR, the interference of a public authority in the exercise of this right is only permitted insofar as this interference is provided for by law and represents a measure which in a democratic society for national security, public peace and order, the economic welfare of the country, the defense of order and the prevention of criminal acts, the protection of health and morality or the protection of the rights and freedoms of others is necessary and in this sense also proportionate. In the opinion of the Asylum Court, the balancing required under Article 8 (2) ECHR is at least to the detriment of the complainant and the expulsion does not constitute an inadmissible encroachment within the meaning of Article 8 (2) ECHR. The complainant was circumventing the border control in December I entered Austria illegally in 2005 and submitted an unfounded asylum application. With regard to her right to respect for private life, which is protected under Art. 8 ECHR, it should be taken into account that the complainant had resided in the federal territory for around five years until the decision by the Asylum Court. The importance of an integration derived from the long-term stay in Austria is reduced by the fact that the stay was only legal on the basis of her asylum application, which ultimately turned out to be unjustified. In addition, she does not have a residence permit. The complainant spoke and understood hardly any German despite her long stay in Austria. She has also not attended any courses or training and does not have any legal employment in Austria, but lives on social welfare. The self-preservation ability is therefore not given. The complainant had also provided no evidence that she participated in social and economic life beyond the degree of integration that inevitably resulted from her stay in Austria. Therefore, one cannot speak of a successful integration.
With regard to her right to respect for family life, which is protected under Art. 8 ECHR, the Federal Asylum Office had already rightly stated and considered that the complainant's grandson and his mother [...] had the status of persons entitled to asylum in Austria. The four-year-old grandson lived with the son of complainant I [...] and the complainant in the same household. The complainant's son and the mother of the complainant's grandchild had joint custody of the grandson. The complainant applied to the court to transfer custody of her grandchild. However, this had been rejected by the district court [...] of the XXX (see file page 699 of the first-instance administrative act of the complainant's son).
The complainant did live with her grandchild and - as her information and the custody proceedings in court revealed - looked after her grandson. However, it was not evident that the minor grandson could not be looked after by his biological mother when the complainant returned to the Russian Federation.Special circumstances that would require special care and attention by the complainant were not alleged in the course of the proceedings. It would also be reasonable for the complainant to return to Austria legally - thus in compliance with foreign law, settlement and residence regulations - in order to maintain family life with her grandchild. It should also be taken into account that family life with her grandson began at a point in time when the complainant had to be aware that her residence status or the continued existence of family life in Austria was uncertain from the outset
(see Section 66, Paragraph 2, Item 8, FPG). The expulsion of the complainant appeared to be admissible even according to the criteria established by the ECHR in its case law on Article 8 of the ECHR. In this context, for example, the decision of the ECHR of
January 31, 2006, number 50435/99 (Rodrigues da Silva and Hookkamer v. The Netherlands), according to which it is, among other things, an important consideration whether family life arose at a point in time when the persons concerned were aware that the The residence status of a family member was such that the continuation of family life in the host country was insecure from the start. He also stated that the expulsion of a foreign family member in such cases only leads to a violation of Article 8 of the ECHR under very special circumstances. According to the VwGH case law (cf. for example the decision of July 7, 2009, No. 2009/18/0215, with further references), the complainant would only then be protected from expulsion and thus subsequently from the point of view of Art. 8 ECHR entitled to legalize their residence from within Germany if a swift or immediate issue of a residence permit to avert unauthorized interference with a by
Art. 8 ECHR protected private or family life would be required. However, the complainant's cited personal ties in Austria did not represent any special circumstances within the meaning of Art. 8 ECHR that would make it unreasonable for her to leave for the duration of a properly conducted settlement procedure.
It should also be mentioned that the complainant had spent most of her life in her home country and still had extensive family and family relationships (mother, siblings) in the Russian Federation. The complainant's degree of integration was therefore not yet to be regarded as sufficiently high in its entirety (cf. also ECHR 8/8/2008, Nnyanzi v. The United Kingdom, Appl. 21.878 / 06 on the balancing of interests between private life and public interest). The complainant's private life, which had arisen in the meantime, was particularly diminished by the fact that she could not rely on continuing her life in Austria even after the asylum procedure had ended. From the point of view of the protection and maintenance of public order, the public interest in preventing the permanent residence of persons who were previously only allowed to stay in Germany on the basis of their asylum application beyond the duration of the asylum procedure comes from the point of view of the protection and maintenance of public order (Art. 8 para. 2 ECHR) (see VwGH December 17, 2007, 2006/01/0216; see the further case law of the VwGH on the importance of the regulations regulating the entry and residence of foreigners: VwGH 06/26/2007, 2007/01/0479 ; 16.1.2007, 2006/18/0453; each from 8.11.2006, 2006/18/0336 or 2006/18/0316; 22.6.2006, 2006/21/0109; 20.9.2006, 2005/01/0699) . Taking into account all known circumstances and on the basis of the above-mentioned case law of the highest courts, the public interest - namely the maintenance of public order and a regulated alien system - outweighs the interests of the complainant.
According to the case law of the ECHR (ECHR 08.04.2008, Nnyanzi v. The United Kingdom, 21878/06 regarding a Ugandan national who applied for asylum in the UK in 1998), with regard to the question of an interference in private life, settled immigrants should consider to differentiate between those who have been granted a residence permit at least once and persons who have only submitted an asylum application and whose stay was therefore uncertain for the entire duration up to the decision in the asylum procedure (in the case of the complainant Nnyanzi, the deportation was not seen as a disproportionate interference with her Private life, since it was assumed that the public interest in an effective immigration control predominated). Therefore, in spite of private and family ties in Austria, in order to achieve the objectives set out in Art. 8 (2) ECHR (maintenance of public order in the area of immigration), expulsion is urgently required and the applicant's deportation to the Russian Federation is permissible.
In accordance with the Austrian Supreme Court and the European Court of Human Rights, the Asylum Court assumes that Article 3 of the ECHR is relevant in the case of expulsion (cf. VfGH E of 6.3.2008, B 2400 / 07-9, and the case law reproduced therein of the European Court of Human Rights; dated 29.09.2007, B 328/07 and B 1150/07; VfSlg. 13.837 / 1994, 14.119 / 1995 and 14.998 / 1997).
For the Asylum Court there was no reason to doubt that the complainant did not suffer from any illness relevant to Art. 3 ECHR, which is why it was not assumed that she would find herself in an emergency due to her return to the Russian Federation or that her state of health would be impaired in a way that threatened her existence ; even the deportation itself does not constitute a violation of Article 3 of the ECHR.
The decision of the Asylum Court of January 11, 2011, number D12 413639-1 / 2010 / 4E, was served on the complainant on January 18, 2011 and became legally binding. In the proceedings of her son I [...], her daughter and their three children, decisions were made at the same time and with the same content.
Asylum procedure in Switzerland
I.3. The complainant traveled illegally to Switzerland at a time that could not be ascertained, applied for asylum there and was transferred back from Switzerland to Austria on December 19, 2011 on the basis of the Dublin Ordinance.
2. Asylum procedure in Austria
1.4. On December 29, 2011, the complainant submitted her second application for international protection in Austria, number 11 15.762-EAST West, and was first questioned on the same day by organs of the public security service. Further written surveys took place on January 5, 2012 and January 18, 2012 at the Federal Asylum Office, in the presence of interpreters for the Russian language. During the interviews, the complainant stated in summary that she was applying for international protection again because her reasons for fleeing were still valid. Nothing has changed in Chechnya, right after the negative decision of the Asylum Court was served, the son called neighbors and friends in Chechnya and was told not to come back. Therefore, the entire family went to Switzerland in March 2011, but was transferred from there to Austria after nine months. The complainant also called her neighbor in Chechnya and was told not to come back. One of the son's uncle still disappeared, another uncle was released in the summer of 2011.
A procedural order was issued to the complainant on January 11, 2012
§ 29 Abs. 3 AsylG handed over, in which she was informed that it was intended to reject her application for international protection, since a decided matter within the meaning of
68 AVG was present and that it was also intended to revoke the de facto protection against deportation by means of an oral notification. Finally, she was informed in writing of the upcoming legal advice.
With the verbal notification of the Federal Asylum Office dated January 18, 2012, number
11 15 762-EAST-West, the de facto protection against deportation was lifted. This was justified as follows: The reasons now put forward why the complainant did not want to return to her home country were identical to those in the previous proceedings. The relevant facts for the decision have not changed since the first asylum procedure became final. The new submission did not contain any new credible asylum-related core. The expulsion pronounced against the complainant was still upheld.
The administrative act submitted ex officio by the Federal Asylum Office was received by the Asylum Court on January 24, 2012. The Federal Asylum Office was informed of the receipt on the same day. With a note on the file dated the same day, the Asylum Court, after carrying out a rough examination, stated that the period of 18 months
(Section 10 (6) AsylG 2005, Federal Law Gazette I No. 100 in the version of Federal Law Gazette I No. 38/2011) had not expired. Since, due to the reasons for asylum presented in the follow-up application, an essential change in the facts of the case is not credible (there is no credible asylum-relevant core) and since no official change in the facts is evident, the follow-up application will probably have to be rejected in accordance with Section 68 AVG because of a decided matter . A real risk of a violation of Art. 2, 3 or 8 ECHR or Protocols No. 6 or 13 to the Convention had not been brought forward by the complainant and could not have been determined ex officio.
In the decision of the Asylum Court of March 8th, 2012, number D12 413639-2 / 2012 / 3E, the officially initiated procedure was repealed by the verbal decision of the Federal Asylum Office of January 18, 2012, number 11 15.762-EAST-West de facto protection against deportation regarding the complainant stated that the lifting of de facto protection against deportation was lawful in accordance with Section 12a Paragraph 2 in conjunction with Section 41a Asylum Act 2005 - AsylG 2005, Federal Law Gazette I No. 100 as amended by Federal Law Gazette I No. 122/2009 be. In summary, it is stated in the resolution that neither the submissions in the context of the present application for international protection nor the evidence submitted can be found in any circumstances that have arisen after the initial legal proceedings and that have been relevant to the decision. Especially since the person concerned has been properly expelled and a decision-essential change in the facts is not credible (there is no credible asylum-relevant core) and no decision-relevant change in the facts is evident ex officio, the follow-up application is expected to be in accordance with Section 68 General Administrative Procedure Act 1991 - AVG, BGBl. No. 51, to be rejected because of a decided matter. A real danger of a violation of Art. 2, 3 or 8 ECHR or of Protocols No. 6 or No. 13 to the Convention was not brought forward by the complainant, nor was it determined ex officio. The complainant was able to work and did not suffer from any life-threatening illnesses. The situation in the country of origin does not pose such a threat either. In Austria, the son and daughter with their three underage children, who are asylum seekers and whose previous asylum procedures were also decided negatively, are said to be. Since no significant change in the facts of the case could be inferred from their follow-up applications for asylum, the follow-up applications of the complainant's family members would also have to be rejected because the matter had been decided. The complainant therefore has no family relationships in Austria with a permanent alien. Pursuant to Section 41a (2) 2nd sentence AsylG, Federal Law Gazette I No. 100 in the version of Federal Law Gazette I No. 122/2009, the deportation implementing the deportation must be carried out by the end of the third working day after receipt of the according to Section 22 Paragraph 10 leg. Cit. Administrative files to be submitted to the responsible court department of the Asylum Court had to be awaited. The administrative act in question was received on January 24, 2012. Since the requirements of § 12a Paragraph 2 in conjunction with If § 41a AsylG exist for the lifting of the de facto protection against deportation, the verbal notification of the Federal Asylum Office dated January 18, 2012 is lawful.
The decision of the Asylum Court of March 8, 2012, number D12 413639-2 / 2012 / 3E, was served on the complainant on March 13, 2012 and became legally binding.
3. Asylum procedure in Austria
I.5. On June 18, 2012, the complainant submitted her third application for international protection in Austria, number 12 07.426-EAST West, to the Federal Asylum Office. On the occasion of an initial written survey on the same day, the complainant stated in summary that she had not left the federal territory of Austria since her illegal journey to or return from Switzerland to Austria. The complainant relied on her submissions made in the first asylum procedure. The complainant's son stated that he wanted to stay with his son, the complainant's grandchild, and that he had the right to stay in Austria because of his child (note: as stated above, the child was in the family proceedings because of his mother in Austria Asylum) and repeatedly cited the alleged reasons for his departure from his country of origin, which had already been legally established as implausible in the first asylum procedure.
With the decision of the Federal Asylum Office dated September 3, 2012, number 12 07.426-EAST West, the application for international protection of June 18, 2012 in accordance with Section 68 (1) AVG was rejected because of a decided matter and the complainant in accordance with
Expelled from Austria to the Russian Federation in accordance with Section 10, Paragraph 1, Item 1 of the Asylum Act. The reasoning was summarized that no new facts relevant to the decision could be ascertained and the complainant did not put forward any further asylum-related reasons or no new objective facts emerged.
A complaint against the decision of the Federal Asylum Office dated September 3, 2012, number 12 07.426-EAST West, was lodged in a timely manner in a brief dated September 14, 2012 and requested that it be granted suspensive effect.
The complaint from September 20, 2012 was received by the Asylum Court on September 24, 2012.
The complainant, her daughter and her three children traveled back to the Russian Federation on December 29, 2012 from the Austrian federal territory with the granting of return assistance. Only son I of the complainant was allowed to remain in the Austrian federal territory despite the final negative asylum procedure and the final rejection of his application for subsidiary protection exclusively because of his son (the minor had been granted asylum in the family proceedings because of his mother).
With procedural order of the Asylum Court of 04.02.2013, number
D12 413639-3 / 2012 / 5E, due to the complainant's return to her country of origin, the third application for international protection pursuant to Section 25 (1) no.3 AsylG was filed as irrelevant.
4. Asylum procedure in Austria
I.6. The complainant again traveled illegally to the federal territory at a time that could not be determined and on May 6, 2014 submitted the fourth application for international protection in Austria, number 360237503-14587235.
On the occasion of her first written questionnaire in the fourth asylum procedure on May 6, 2014, the complainant, in the presence of an interpreter, gave written and spoken Russian and Chechen language, but only poor German. Most recently, the complainant worked as an employee in a XXX in the country of origin and received a state pension. Although the complainant had traveled from the country of origin to Austria in the back seat of a car and was able to look out the window, she was unable to provide any information about the route. The complainant stated that she applied for asylum in Switzerland in 2011 and "otherwise only twice in Austria" (note: verbatim quotation). After being expelled from Austria, the complainant voluntarily moved to her home country, where she stayed from November 29, 2012 to May 5, 2014. When asked about her reason for fleeing, the complainant stated verbatim:
"... I was forced to leave the country. When I was walking home one night, they stopped me and told me if I would like my children to have problems too. They held me and therefore also come the bruises on the inside of my right upper arm. I don't know exactly who it was. They asked me to bring my son (I [...]) back. The last time I met these people, say they to me they would still settle accounts with me. Since then they have come to see me again and again, also with my daughter.
Who are these men?
They wear black uniforms and we call them "Kadyrowci", they are followers of Kadyrov.These men can do anything to me! I am really afraid for myself and my children! My daughter's children are marginalized in Chechnya because they were born in Austria and they do not feel at home in Chechnya.
Caution: Why did you give false information about your trip through an EU country?
I can't remember everything.
12.2. Where exactly and for how long did you stay in the said EU country:
One day at most. I've only been to XXX and nowhere else. I have no connection with XXX.
I just want to go to Austria. Nowhere else to go.
What do you fear when you return home?
I know for a fact that I would not survive returning again. You will kill me. These people are cynical and sadistic! These people also visit my mother regularly and ask questions about me.
I can just disappear or they will kill me. I don't know what's going on in these people's minds. I just know that I am threatened by these people and I cannot live with this fear. My daughter knows everything, she heard the threats too. .... "
On the occasion of a written questionnaire at the Federal Office for Immigration and Asylum on April 14, 2015, the complainant stated, in the presence of an interpreter:
"... Q .: What specific illnesses do you suffer from?
A .: I have eye problems, stomach problems and diabetes. I also have problems with my colon and pain in my limbs
AW presents: medical records of the [...] and hospital [...].
Q .: Which therapy do you use in Austria because of this?
A .: Eye therapy, when I asked, I said I was given medication and I don't know what drops they are called. I can't explain it exactly.
Q .: Do you get any other therapy besides the medication?
A .: No, just the medication.
Q .: Was that why you received treatment back home?
A: Yes, but I haven't found out what I have. When asked, I stated that I got glasses and medication for diabetes and other things, but I don't know what the medication was called.
Q .: Do you have any medical documents from home?
On a. I didn't take that with me.
Q .: Where did you receive treatment back home?
A .: It was the hospital [...] in XXX. I also went to see a doctor privately, I don't know the name at the moment, but I'll send the medical documents and the doctor's name over here when I'm at the pension.
AW is asked to provide findings immediately after visiting doctors.
V .: If you have a valid travel document, you will be informed that a corresponding use of the document, which indicates a protection agency under the country of origin, can constitute a reason for the withdrawal of asylum.
Q .: Have you provided truthful information in the proceedings up to now?
Have they been translated back and correctly recorded for you?
A .: Yes. I was telling the truth and the minutes were back-translated to me.
Q .: Do you have to present identity documents (passport, national passport)?
On a. I have nothing.
Q: Do you have any other documents or evidence that you can produce?
Q .: Can you now speak or understand German?
A .: Yes, I can speak a little German.
Q .: Do you understand the interpreting perfectly?
A .: Yes.
Q. What ethnic group and religion do you belong to?
A .: I belong to the Chechen ethnic group and the Muslim religion.
Q .: Can you read the Latin script?
A .: Yes.
Q .: Are you married? Do you have children?
A .: My husband [...] died in 1992. I'm a widow. I have a daughter named [...] and a son named I [...].
Q .: The present application for international protection is your fourth application.
When was the first time and how long were you in Austria?
A .: I was in Austria from December 2005. Until November 2012. (IOM departure confirmation received on December 9, 2012 by email from IOM)
I returned to XXX with my daughter and her children.
Q .: How long have you been in Austria continuously now?
A .: Since May 2014.
Q .: How did you get here?
A .: Illegal. With a tractor in his car, I paid 25,000 rubles.
Q .: Have you applied for asylum in any other country other than Austria?
On a. Never.
Q .: Have you ever had a residence permit outside of the asylum procedure? Do you have any other residence permit in Austria or a European country?
A .: No, neither nor.
Q .: Why did you travel to Austria or what was the goal of your trip?
A .: I've been here before and my son is also here and my grandchild.
Q .: When exactly did you decide to leave your home country again?
A .: end of April 2014.
Q .: When did you actually leave your home country?
A .: On May 3rd, 2014.
Q .: Where did you spend the last night before leaving?
A .: I was with my brother in Chechnya, in XXX, the address was [...], I don't know the house number.
Q .: How long have you been there?
A .: Just one night.
Q .: Describe your departure.
A .: I stayed with my brother in XXX last night. I then walked to my daughter and said goodbye. Then I drove away. I made an appointment with a man that we would meet, and then I drove away with him in the car. We met at the [...] place where I worked.
Q .: Have you ever had a passport?
A .: In 2005 I handed in my documents in Poland, they are still there. My passport was there too.
Q .: Where is your domestic passport located?
A .: I lost that. When asked, I stated that I lost my domestic passport when I was deported from Switzerland, that was in 2011.
Q .: Why didn't you get a new national passport?
A .: I was scared.
Q .: How did you live in Chechnya without a domestic passport?
A .: I have never used anything other than my insurance card, I have it in Austria in my pension.
AW is requested to present the original insurance card and all other documents from the Russian Federation (medical documents) within a period of 1 week.
Q .: Could you please provide a short résumé relating to yourself? E.g .: Where did you grow up, what school education did you complete, what profession did you practice, etc.?
A .: I was born on [...] in [...], Kazakhstan. I grew up in [...], where I also completed compulsory school. I got married and had 3 children, a son of mine died in the war. My husband died in 1992.
Q .: What professional training do you have?
A .: None. I worked as a saleswoman in Chechnya until 2005.
Q .: What did you do for a living before you left the country in 2014?
A .: I worked in a XXX as XXX every day. That was in XXX.
Q .: What is the address of the [...]?
A .: The street was called "[...]".
Q .: When was your last day of work at home?
A .: I worked there from January 2013 to 2014. Until departure. My last working day was April 29th or 30th, 2014.
Q .: Did you quit?
Q .: Which relatives still live in your country of origin (name, date of birth, place of residence, what do they work, nationality)
A .: My mother [...], she is about [...] years old and lives with her son in XXX. My mother lives on the state pension she receives.
My daughter [...] lives in an apartment in XXX. She is married, but her husband is here in Austria. She has 3 children who live with her in XXX. My daughter works as XXX IN XXX.
My brother [...] is married and lives in XXX. He works as XXX for XXX.
My sister [...] is widowed and lives in the settlement [...], district [...]. She doesn't work, she receives a pension.
Q .: How are the relatives in the country of origin in contact with you?
A .: Yes, with my daughter.
Q .: Please state chronologically and without any gaps the whereabouts of the last 3 years up to the departure.
A .: I've always lived in XXX. The adress is [...].
Q .: Was that until you left the country?
A .: Yes. I was there until one night before leaving. When asked, I stated that I have lived there since 1994.
Q .: Was it a condominium, a rented apartment, your own house? Who did you live with?
A .: This is an apartment, it belongs to my son I [...]. We were all registered there. That's where I, my daughter, my son, who passed away, lived.
Before leaving Germany, I and my daughter lived there and my 3 grandchildren lived there.
Q .: Who lives there now? What happened to the house (apartment)?
A .: My daughter and her children still live there.
Q .: Did you already use the family name you specified in your country of origin?
A .: Yes. My name is [...].
Q .: Did you ever have a different name?
A .: My maiden name is [...].
Short break at the request of the AW from 11:40 a.m. to 11:45 a.m.
Q .: Answer "Yes" or "No" to the following questions. You will have the opportunity to comment in detail on these questions later:
Q .: Do you have a criminal record or were you imprisoned in your home country or did you have problems with the authorities in your home country?
A .: I have no criminal record and have never been in custody. But I had problems with the authorities because of my son I [...].
Q .: Are there any current state investigative measures such as arrest warrant, criminal complaint, wanted poster, etc?
Q .: Are you or have you been politically active?
Q .: Are you or have you been a member of a political party?
Q .: Did you have any problems in your country of origin because of your religion?
Q .: Did you have any problems in your country of origin due to your ethnic group?
Q .: Did you have major problems with private individuals (debts, acts of revenge, etc.)?
A .: Yes.
Q .: Did you take an active part in armed or violent clashes in your home country?
Q .: State again the reasons why you left your home country and applied for asylum, completely and truthfully on your own.
You are cautioned that false information could affect the credibility of your submission. If you have given incorrect information to the Austrian authorities at any time or if there are any other inconsistencies, you will be asked to make this known now. As far as you refer to events, you will also be asked to state the time and place when they took place and the people who were involved.
A .: I didn't want my daughter to have problems because of me. They were after me. They were people from Kadyrov, they were at our house and they asked me about my son. I said please don't harm my daughter, I'm going away. I didn't want to leave, but I had to. I've always had problems. I worked so that I would be away from home, I never wanted my children to have problems. The men said to me, if you don't tell us, they threatened me.
Q: If you don't say something?
A .: Where is my son.
Q .: Who was at your home when and what did these people want?
A .: I cannot say specifically. All I can say is that men came to our house and asked about my son. A man also came to work with me. My daughter then said to me that if I have such problems, I just have to go away.
Q .: When was the last incident of this kind?
A .: On April 29, 2014.
Q .: What exactly happened?
A .: They told me give us money, you have to tell where your son is and he has to come.
Q .: Would you like to state something about your reason for fleeing?
A .: I'm scared and have health problems. I am afraid my relatives will get into trouble because of me and I am afraid to return. I'm scared for my children, that's why I don't want to go back.
Q .: Did you fully describe all the reasons why you left your home country?
A .: Yes.
It will be translated back. Ast is asked to pay close attention and to announce immediately if something should be incorrect or if he still has to add something.
After the translation has been carried out, the ASt states:
A .: That's all right. It's just that I'm not here because of the health problems.
Q .: When was your son I last [...] in the Russian Federation?
A .: 2004.
Q: Why should one still look for him?
A .: There is no law there.
Q: You said you were afraid for your children, that's why you don't want to go back. How does it help your children when you are in Austria?
A .: My daughter can work quietly, as long as I am not with her, she can live there in peace. She can take care of her children.
V .: You already stated the same reasons for fleeing in your first asylum procedure in Austria in 2005/2006. With the decision of the Federal Asylum Office, your application for international protection was rejected, your allegations were denied credibility, and this decision was confirmed by the Asylum Court. It is unbelievable that you are being persecuted again for the same unreliable reasons.
A: I can't lie, that's the truth.
V .: The asylum applications of your son I [...] (IFA 356179300) were all rejected or rejected.
A .: That's right.
V .: It is also not credible that you have lived in Chechnya, of all places, in XXX, since 2011 without a domestic passport.
A: I've always been telling the truth.
Q .: (If there is no true marriage) Do you live in a partnership?
Q .: Do you have relatives in Austria? If so, which ones and where do they live? How
is there contact with them?
A .: My son I [...] lives with his son [...] in Austria. They live in [...]. He has a visa (residence permit, Red-White-Red Card Plus, valid until June 11, 2014, application for extension pending). My son lives with his wife. At the moment we only have telephone contact.
Q .: Is there a special one about the relatives in Austria?
Relationship intensity, a relationship of dependency?
A .: There is no relationship of dependency. Everyone lives their life.
Q .: Do you receive financial or material support in Austria or are you dependent in this regard?
A .: I get the basic supply, nothing else.
Q .: Have you attended German courses or passed positive exams?
A .: No, I learned some German on my own. I have never attended a German course and am currently not attending one.
Q .: Do you work in Austria or have you worked in Austria in the past? A .: I worked as a nanny in Austria in 2012. I'm not currently working.
Q .: How much did you earn a month? Did you pay taxes, were you registered?
A .: I got around € 3-6 per hour, I didn't pay taxes. I made € 220 or € 204. That was from Caritas, I don't know if it was registered.
Q: If you are currently not in employment, have you tried to get a job?
A .: I haven't done anything about this yet. But I would like to work.
Q .: What is your social environment like in Austria? Do you have friends or acquaintances in Austria (names, nationalities)?
A .: I have friends here, XXX, all of them work. When asked, I admit that they are all Chechens.
Q .: Do you have any private interests in Austria?
A .: I want to work, but currently I am not doing anything. When asked, I say that I read and relax, I write, look at newspapers and study.
Q .: Are you actively involved in a club or an organization? Do you do any voluntary work?
Q .: Did you come into conflict with the law in Austria?
The country reserve is handed over to the applicant and a comment period of 2 weeks is agreed.
Q .: Do you agree to official surveys on site while maintaining your anonymity, possibly involving the Austrian embassy and a lawyer of trust?
On a. When asked, I admit that nobody tells the truth there.
Q .: I am now finishing the survey. Have you had the opportunity to present everything that is important to you or do you want to add something?
A .: I've said everything.
Q .: Did you understand the interpreter perfectly during the entire interview?
A .: Yes.
Q .: The transcript will now be translated back for you and you will then have the option of correcting or adding something.
The entire transcript is literally translated back.
Q .: Do you now have any objections to the transcript itself after the retranslation, was your interrogation correctly and completely recorded?
A .: I earned 220 or 240 euros as a nanny.
Otherwise everything is correct ... "
On the occasion of the written questioning, the complainant submitted a preliminary doctor's letter from a gynecological department XXX, an endoscopy report, gastroscopy XXX, and a letter from XXX.
On April 24, 2015, 5 photos were submitted to the Federal Office for Immigration and Asylum.
With the decision of the Federal Office for Immigration and Asylum dated May 15, 2015, number 360237503-14587235, the application for international protection of May 6, 2014 in accordance with Section 68 (1) AVG was rejected because of a decided matter (point I.) and the complainant was granted a residence permit reasons worthy of consideration
Sections 57 and 55 Asylum Act 2005, Federal Law Gazette I No. 100/2005 (AsylG) as amended, not granted. According to
Section 10 (2) AsylG in conjunction with Section 9 of the BFA procedural law, Federal Law Gazette I No. 87/2012 (BFA-VG) as amended, a return decision was made against the complainant in accordance with Section 52 (2) number 2 Aliens Police Act 2005, Federal Law Gazette I No. 100 / 2005 (FPG) as amended. Pursuant to Section 52 (9) of the FPG, it was established that the complainant's deportation to the Russian Federation was permissible under Section 46 of the FPG (point II of the ruling).
Against this decision of the Federal Office for Immigration and Asylum dated May 15, 2015, number 360237503-14587235, delivered on May 16, 2015, the complainant filed a complaint in due time on May 22, 2015.
The complaint from June 2nd, 2015 was received by the Federal Administrative Court on June 5th, 2015.
In a letter from the Federal Administrative Court dated June 5, 2015, the Federal Office for Immigration and Asylum was informed that the complaint had been received on the same day.
In the complaint of XXX, submitted to the Federal Office for Immigration and Asylum on May 22nd, 2015, it is stated in summary that an application is being made (note: missing and double numbering in Roman numerals in the original) I. to completely eliminate the contested decision, the procedure to allow a decision to be issued on the matter itself and to grant the complainant according to § 3 AsylG, in eventu the status of a person entitled to subsidiary protection according to § 8 Abs. 1 Z 1, in eventu III. determine that a return decision issued in accordance with Section 52 FPG in conjunction with Section 9 BFA-VG is permanently inadmissible and therefore determine that the requirements for the issuance of a residence permit pursuant to Section 55 (2) AsylG are met and the complainant is therefore in accordance with Section 58 (2) AsylG 2 AsylG a residence permit is to be issued ex officio in accordance with Section 55 AsylG; in eventu IV. to establish that the requirements for the issuance of a residence permit for special protection according to § 57 AsylG exist and to grant the complainant an AB special protection; V. to remedy the contested decision in its entirety because of its illegality and to refer it back to the Federal Office to carry out a new procedure and issue a substantive decision; In any case, V. to arrange an oral complaint hearing in order to supplement the unsatisfactory investigation procedure in accordance with Section 24 (1) VwGVG, and VII. to recognize the suspensive effect of the complaint within seven days due to risk of delay in accordance with Section 18 (5) BFA-VG. First of all, it should be noted that the notification that was served had neither a signature nor an official signature, which is why no legally effective notification had been issued. The decision is fought because of illegal content, because of incorrect legal assessment and deficiency of the procedure due to incorrect or inadequate investigations and inadequate evaluation of evidence. After that will be
Art. 1 Section A GFK, § 18 AsylG, § 37 AVG in conjunction with § 39 Paragraph 2 cited. The complainant then states that she was no longer in her home country from 2005 to 2012, that her "voluntary departure" in 2012 was not really voluntary, that she had no choice, otherwise she would have been deported. The complainant was nevertheless afraid of returning to her home country. That is why she traveled to Switzerland after the second asylum procedure (number 11 15.762 -EAST West) became final, as she was afraid of returning to her home country. However, the complainant had been transferred back to Austria and was therefore forced to submit a third application for international protection. The complainant always had severe headaches and the stress made it difficult for her to give precise details of the time. Subsequently, excerpts from the previous submissions in the fourth first instance asylum procedure are repeated. The daughter-in-law in Austria does not go to work and the son of complainant I [...] is currently unemployed. The complainant is like a mother for her grandson, who lives in Austria. The grandchild has no real relationship with his mother. In this regard, reference is made to the enclosed letters from the daughter-in-law and grandson. Although the grandchild lived with his father, the statements made by his mother and the custody proceedings in court showed that "the son is being looked after by the BF's mother" (note: literal quote). The family wanted to take in the complainant. The photos submitted to the Federal Office for Immigration and Asylum would show the daughter's hand trapped in a door. This is what the men did when they came to their daughter. In addition, the Federal Office for Immigration and Asylum did not take into account what had changed between the last asylum procedure and the time when the decision was issued for this new, now fourth application for international protection, a period of almost three years. The decisive factor was that the complainant's third proceedings had not been legally concluded because she had previously left voluntarily. The decisive factor was therefore the facts since June 1, 2012 and that the complainant had been threatened and prosecuted in the Russian Federation after this date, which is why there was in any case new facts. It is therefore not sufficient for the Federal Office for Immigration and Asylum to point out that the reasons for fleeing the applicant and her son put forward in the preliminary proceedings had been assessed as untrustworthy. The authority should have carefully examined this new issue, after June 1, 2012, acts of persecution against the complainant, which is why there was undoubtedly a new issue, and should have subjected it to an assessment. The facts have also changed insofar as the complainant's son, whose persecutors want to get hold of the complainant, is no longer in the Russian Federation and the complainant's persecution has therefore intensified. Apart from her brother, the complainant is also a single woman and, because her daughter no longer has a husband in the household, is even more vulnerable than in the initial proceedings. The authority should have made country determinations regarding the situation of single women in their country of origin. The complainant is being persecuted on the basis of her assumed political convictions and because she belongs to a certain social group (belonging to her son, group of single women in Chechnya). It had not been sufficiently determined to what extent the complainant's state of health had actually changed / worsened since June 1, 2012. The merely blanket reference that the complainant had been suffering from her illnesses for years and had been treated accordingly in her country of origin, and that her state of health had not deteriorated, was too blanket and insufficient assessment of evidence. Rather, the authority should have justified why nothing has changed in this regard since June 1, 2012. The complainant submitted a medical report from XXX. After the complainant quoted excerpts from the said findings, she applied for an expert opinion from a specialist in psychiatry (preferably a woman) specializing in traumatization under "Relationship" (note: literal quote, probably meant to be consultation) from a female interpreter to prove that the complainant was traumatized / post-traumatic stress disorder / other mental illness and that a return to the Russian Federation would result in such a worsening of the illness or retraumatisation and violation of Articles 2 and 3 ECHR. A doctor's report from XXX and a card printout from previous treatments will also be presented, as well as an appointment with an FA for ophthalmology on XXX. Among other things, the state determinations at the time when the first asylum procedure became final had not been compared with the current state determinations and it was checked whether the situation in the home country had changed in this regard. The authority's country findings show that the situation in the North Caucasus was largely unstable in 2014. Subsequently, reference is made to the reports 09.2014 European Asylum Support Office and 04.07.2012 Austrian Center for Country of Origin to Asylum Research and Documentation and quoted from them. It had not been established exactly to what extent the facts of Art. 8 ECHR had changed since the first asylum procedure became final. In this regard, reference is made to the previous statements and to the enclosed letter from the daughter-in-law and the grandson. For her grandson, the complainant was his mother, he had no relation to his birth mother, which is why the complainant's deportation was a violation of
Art. 8 ECHR would mean and be inadmissible. The new facts mean that now, in addition to the grandson, the son has had a red-white-red card plus since 2013 and thus a right of residence in Austria, that he remarried in 2014 and that it was evident that the complainant despite remarrying for the grandson like a mother and the most important caregiver, not the birth mother and not the daughter-in-law. The consequences for the complainant and her grandson should be taken into account when issuing a return decision. The complainant therefore applied for a testimony of her son and daughter-in-law to prove that between her, her son, his wife and in particular the grandson there was a relationship between a mother and her child, as described above, and the deportation to the Russian Federation would therefore cause a violation of Art. 8 ECHR, with the result that the complainant's deportation would be inadmissible and the return decision would be determined to be permanently inadmissible. The investigating authority has therefore in no way explained in a comprehensible manner why it nonetheless assumed that new facts were not available. Subsequently, § 17 Abs. 1 Z 1 BFA-VG is quoted and stated that this applies in full according to the points already mentioned above, in particular due to the impending danger to life and limb when the complainant is deported to the Russian Federation and due to the violation of the
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