An inconceivable judgement has now become known, in which Austria has to accept defeat by the European Court of Justice (ECJ) for the time being. An Iraqi who had filed an asylum application in Austria, which was legally rejected, filed another application for international protection, this time stating that he was gay and therefore threatened with persecution in his home country. A fact he had concealed in his first application. The ECJ now ruled that his subsequent application must be taken into account.
On July 18, 2015, the Iraqi citizen of Muslim-Shiite faith filed his first application for international protection with the Federal Office for Immigration and Asylum (BFA), which was rejected by decision of January 29, 2018. After the Constitutional Court rejected the Iraqi’s last judicial appeal against this decision in a decision of September 25, 2018, the decision became final.
In these proceedings, the Iraqi argued that he would have to fear for his life if he returned to his home country because he had refused to fight for Shiite militias and the country was still at war.
Eleven months later, on December 4, 2018, he filed a follow-up application for international protection. And now it gets curious. In support of this application, he claimed that in the proceedings on his earlier application, he had not stated the real reason for his request for international protection, namely that he is homosexual. Due to his sexual orientation, he had to fear for his life in Iraq, as it was forbidden in his country and “in his religion”. Only after his arrival in Austria, thanks to the support of an association with which he had been in contact since June 2018, did he realise that he would not be personally persecuted if he admitted his homosexuality.
The BFA rejected the application in less than two months. In addition, it ordered the repatriation of the person concerned to Iraq and issued an entry ban for Austria limited to a period of two years.As expected, the Iraqi appealed against this decision to the Federal Administrative Court, which on March 18, 2019, granted the appeal only insofar as it related to the entry ban for Austria, and dismissed it in all other respects.
Nevertheless, the Iraqi did not give up and appealed to the Constitutional Court (VfGH). And of all things, the latter turned to the European Court of Justice with a request for a preliminary ruling. The latter ruled in effect that the subsequent application must be examined if these new elements or findings contribute significantly to the likelihood that the applicant is to be recognised as a person entitled to international protection and the applicant, through no fault of his own, was not able to present these new elements or findings in the earlier proceedings. Furthermore, there may be no time limits for the subsequent application.
It will be interesting to see whether the allegedly gay Iraqi will be granted asylum status. And hopefully the Iraqi will also have to credibly prove that he is gay and will be questioned accordingly. Should this be the case, then the BFA would have to make it unmistakably clear to every asylum seeker in future that he or she would not be threatened with reprisals in Austria if they confessed to homosexuality. The gay population quota would probably quickly rise to immeasurable proportions…
In view of similar cases, Freedom Party leader Herbert Kickl had already repeatedly criticised laws with which Austria virtually tricks itself and demanded that they be amended. As Minister of the Interior he was able to do something along these lines, but his successors revised most of it again.
https://www.unzensuriert.at/content/134578-folgeantrag-moeglich-eugh-gibt-schwulen-asylwerber-recht/