Why do we call Naxalites Naxalites
Reasons for the decision:
The complainant, an Indian citizen, filed an application for international protection on February 1, 2006 and was questioned in writing on February 2, 2006 by an organ of the public security service.
In doing so, he essentially stated the following about his reasons for fleeing:
Since the complainant holds the office of president of a social organization called XXXX in his home country and has money for donations and social support there, he was blackmailed by the rebel organization Naxaliten and threatened with killing.
In the course of the questioning before the Federal Asylum Office on February 6, 2006, the complainant essentially put the following on record:
The complainant had left the country legally with his passport, which was issued to him in September by the Passport Office XXXX. He had never personally had problems with the local authorities, he was not wanted by the local authorities. He earned his living from his own farm in India, from the XXXX he received a kind of expense allowance of 3,000 rupees a month. He has been working for the XXXX since February 2005. The problems with the Naxalites began in October 2005. On October 12, 2005 the Naxalites came and demanded one million rupees from him, from the money for the organization. He refused to pay. They would have given him a deadline of 11/30/2005, if he didn't pay at least 500,000 rupees, then they wanted to kill him. However, he fled from his home town on November 29, 2005. On November 30, 2005, the Naxalites went to his parents 'house, rioted and damaged things in his parents' home. They also threatened his parents. He was with his sister in place XXXX, which was about 80 kilometers from his hometown. He then did not return home. On January 14th, 2006 he drove briefly to his parents' house during the night, he just packed his things and then drove straight to XXXX, where he was until his departure. He said he did not contact the police about the threat posed by the Naxalites, as they threatened to kill him. In recent years, many people who sought protection from the police because of the Naxalites have been killed. There is no evidence, but he can get some. The Naxalites had written their demands on pieces of paper, which he might be able to get hold of when she had picked up his wife. He has no other problems in his home country. When asked why he had not settled in another part of his home country in order to avoid these problems, he replied that he could not have found protection in India because he was in contact with his family. This would also have enabled the Naxalites to find out where he was. He said he was better protected abroad if he had stayed in India, then they would have put pressure on his family to find out where he was. When his family told the Naxalites that the complainant was abroad, they left them alone. If he returns, he could be killed.
On December 10, 2007, the complainant was again questioned by the Federal Asylum Office, essentially making the following:
There were no relatives in Germany. His father, wife, two children and four sisters lived in the homeland. When asked about the reason for his departure, he stated that he had left India because he had farmed in his hometown. On October 12, 2005 he was elected president by an association called XXXX. This association supports the poor landowners with advice and action or with funds. Ten people from each location would be sent to vote and these people would elect a president from this group of people. The complainant emerged from the election as President on October 12, 2005. About a month after the election, he was visited by six or seven Naxalites at home during the night and they demanded a sum of one million rupees from him. Apparently the Naxalites would have believed that as president of this association he had such a sum of money. He told these people that he had no funds as president of the association, whereupon they told him that he had ten days to raise the requested amount. Then they would have left again. After about ten days he went to his sister, where he found out from his family that the Naxalites had come to his home about five days after this appointment and had told his wife and father that he would definitely have 500,000 He would have to transfer or bring rupees to an address that was given to his father, otherwise he would have to reckon with major problems. Then the complainant traveled to Austria. In the event of his return, he feared that the Naxalites would continue to threaten, persecute or even kill him. When asked why he had not stayed with his sister, he stated that he was afraid that the Naxalites would find him there as well, and that his property was in a different location and that he would not have been able to cultivate it from there. He did not stay in Bombay because he had nothing there. With regard to an alternative in India, he stated that his properties were in XXXX and that he could not have cultivated them from any other location. In addition, there was a risk that his family could have disclosed his whereabouts to the Naxalites if they asked. He didn't know anyone from the Naxalites. When asked, he stated that he had the note where he should have sent the amount of 500,000 rupees and that it was at home. He also had an ID from the club mentioned. This is also at home. As a result, the complainant was held up to country determinations on which he stated that the country determinations corresponded to the truth, otherwise he would not say anything about them.
Subsequently, the complainant submitted two documents, namely a slip of paper with the heading "Threat messages" and a document with the heading "XXXX".
With a decision dated January 31, 2008, the Federal Asylum Office rejected the FZ. 06 01.427-BAE, the application for international protection according to § 3 Abs. 1 AsylG and did not recognize the complainant the status of asylum seeker (ruling point I.), recognized him according to § 8 Abs. 1 AsylG in relation to the status of beneficiary of subsidiary protection does not apply to the country of origin India (point II.) and expelled him from the Austrian federal territory to India in accordance with Section 10 (1) AsylG (point III.).
The Federal Asylum Office justified that the complainant's submissions did not correspond to the facts and that even if one were to proceed from the complainant's submissions, reasonable alternatives would have been open to him. It did not emerge that there was a nationwide, general, extreme risk situation with regard to India, in which every asylum seeker would be extradited to certain death or very serious injuries in the event of deportation. The complainant is a national of India and has no relatives in Austria. There is therefore no family life worth protecting in the sense of Article 8 ECHR in Austria, which is why the expulsion does not constitute an encroachment on the right to family life under Article 8 ECHR. The lack of knowledge of German and the short stay in the federal territory did not constitute a private life worth protecting.
On the other hand, the complainant lodged an appeal (now more of a complaint) in due time and essentially stated the following:
He was exposed to asylum-related persecution in India because he was being persecuted for political reasons and the Indian state could not protect him from persecution or was unwilling to stop the persecution. He is being persecuted by supporters of the Naxalites. The Naxalites would have asked him to pay, otherwise they would kill him. He is president of the XXXX association. This association campaigns for the rights of poor landowners, for this reason it was chosen by the Naxalites because they saw in him a person who could influence other villagers. After he was unable and unwilling to pay, they rioted in his house and his parents' house. The complainant did not go to the police to report the incident because the police in India were unable to protect him from the persecution of the Naxalites. The authority assumes a domestic flight alternative. In doing so, however, she assumes false facts. India is democratically constituted and should thus guarantee freedom of religion and freedom of expression. However, there are still unrest based on religious, political and other differences, without the Indian state having succeeded in protecting its citizens comprehensively from them. An alternative domestic flight would be tantamount to displacement. It could not be in the sense of the Asylum Act that an Indian somewhere in India could so badly stay afloat so that domestic expulsions for racist and religious reasons would be legitimized. The authority rejects the club card without having subjected it to an examination. He applied for the club ID to be checked, as it was objective evidence. The persecution by the Naxalites is not persecution by private individuals. The Naxalites and their attacks are a side effect of the political landscape in India. They are effects of the socio-political conditions and are therefore not comparable with the actions of individual, criminal groups. The legal and executive organizations in India are not in a position to take action against the persecution of the Naxalites, which puts him at risk of asylum-related persecution. The applicant subsequently quoted from an Amnesty International report. For the reasons listed above, it emerged that he was threatened with asylum-related persecution in his home country.
On October 19, 2010, a public oral
Negotiation took place during which the following occurred:
VR: What made you leave your home country?
BF: I got problems with Naxalites in my home country. I was scared for my life and it was very difficult to live there. That's why I hid. I had to leave the country because I was afraid for my life. I have also provided evidence of this.
VR: Can you specify what exactly happened?
BF: I'm a farmer, and I was also elected president of an association called "XXXX", an association for farmers in our village. Because I was the president, the Naxalites hoped they could extort money from me. They asked for a million rupees. We tried to negotiate to cut the amount in half. I said that I have no money and therefore I couldn't pay the money. That's why they terrorized me, they sabotaged my animal feed and my agricultural equipment. That's why I fled to XXXX. Although I lived in XXXX, the Naxalites harassed and threatened my family. It became unbearable. I was afraid of being killed. That was the reason why I left India. I wanted to live outside of India for 5 to 10 years.
VR: Who of your family is currently still living in India?
BF: My father, my mother passed away in the meantime. My wife and my 2 children.
VR: They still live in their hometown?
BF: Yes, in my home village.
VR: How long have you been with the club mentioned?
BF: Since 2005.
VR: When exactly in 2005?
BF: October 2005. I held this position for 5 months.
VR: Have you ever had contact with the Naxalites?
BF: I have had no contact with the Naxalites, I was not present at home.
VR: But you said before that you negotiated with the Naxalites?
BF: You told the family.
VR: When did the Naxalites come and where have you been?
BF: You came the night I was visiting my sister in another village.
VR: When was that?
BF: December 2005. But I can't remember exactly, it was a long time ago.
VR: What is the name of the vice-president of the association where you were president?
VR: How long have you been president when these problems started with the Naxalites?
BF: 5 months. I didn't put the function back, I just walked away.
VR: How often did the Naxalites come to your family?
BF: You were personally at my home 3 times, once you wrote a letter.
VR: When did that happen and where were you always when the Naxalites came?
BF: It was a coincidence that I wasn't there. After they were at my home for the second time, I stayed somewhere else to be on the safe side, because I saw the danger, I stayed with friends and relatives.
VR: When did you come the second time and where did you stay?
BF: I stayed with my 2nd sister in XXXX. The last time was in January 2006. The 2nd I don't remember exactly, it must have been in December 2005. In January 2006 I made the decision to leave my home village.
VR: The first time you were where exactly?
BF: The other sister lives in XXXX.
VR: How long have you been hiding?
BF: Since January 2006.
VR: Why did you state to the BAA on December 10, 2007 that you were at the
Have been present for the first time when the Naxalites came? You stated at the time: "I explained to these people ..."
BF: What is in the protocol is wrong. On January 29th, 2006 I was already in Austria.
VR: That doesn't explain the allegation that you indicated to the BAA that you yourself had contact with the Naxalites. Today you stated that you had no contact with them.
BF: I don't understand what you mean.
VR declares lead.
BF: What I said then is not true, today I am telling the truth. I answered the questions at the time, maybe I was excited and therefore said something wrong. I'm under a lot of pressure because I left my family behind.
VR: Why did you state during your interrogation at the BAA on February 6th, 2006 that the Naxalites came on October 12th, 2005, on December 10th, 2007 you stated that the Naxalites came about one month after October 12th, 2005, i.e. around mid-November 2005, and today you stated that the Naxalites came for the 1st time in December 2005?
BF: I was confused and under a lot of pressure. I was also afraid of the future, so it's possible that I couldn't concentrate and said something wrong. But it was the end of the year.
VR: When did you get something in writing from the Naxalites?
BF: I submitted the letter to the BAA. I was already in Austria when my family received this note. I found out about this when I was on the phone with the family.
VR: Have you ever received anything else in writing from the Naxalites?
BF: After this letter, the family did not receive anything.
VR: And before?
BF: Not before either.
VR: You said at the BAA that your father had been given the address where you should take the 500,000 rupees?
BF: That's right. We should bring 1 million or 500,000 rupees to this address.
VR: Then you received something else in writing after all?
BF: I don't know if it was a letter back then, my father told me that I have to bring the money to this address.
VR: The name of the deputy chairman on this certificate, which you have presented, is different from what you stated today?
BF: Yes, it could be someone else. I forgot everything because it was a long time ago.
VR: Do you have family members in Austria?
VR: Do you live in a community?
BF: No. I live with compatriots in a shared apartment.
VR: Do you speak German?
BF: Very little.
VR: Do you have an Austrian group of friends?
BF: No, only from the home country.
VR: Do you work here in Austria?
BF: I distribute newspapers.
VR: Are you doing this legally?
BF: I thought it was legal, I thought it was possible to work as an asylum seeker.
BR: No questions.
A report from the German AA (Appendix A), as well as an expert opinion (Appendix B) and a report from the state documentation (Appendix C) are discussed and taken to the file.
BF on this: I admit that these problems exist regionally and not in all of India. You can live in India, but without family contact it will be difficult and the Naxalites would take advantage of family contact to find me.
The Asylum Court has considered:
The following facts are established:
The complainant is a national of India.
On February 1, 2006, he applied for international protection. His father, wife, two children and four sisters are in his homeland.The complainant has no family members in the federal territory, he does not live in a community, speaks very little German and has no Austrian circle of friends.
India is a democratic and, with restrictions, well-functioning constitutional state with a multi-party system. The party landscape is diverse. The press is essentially free. The constitutional and legal order guarantee basic human rights and freedoms. The judiciary is independent. However, the duration of the procedure is often extremely long; Corruption cannot be ruled out in individual cases. There are human rights violations by police and security forces, a systematic is not discernible. Human rights violations occur particularly in the unrest areas. The lower social classes and women are particularly at risk.
Unless extraordinary natural disasters occur, a food supply that ensures the survival of even the weakest sections of the population is fundamentally guaranteed.
Basic health care is in principle granted by the state free of charge. But it is consistently inadequate. Since the demand for services from the state sector is very strong, many are turning to private providers for better or faster treatment. The private healthcare providers enjoy a better reputation because of the more advanced infrastructure and qualified staff. In all major cities there are medical facilities where survival measures can be carried out. With the restrictions mentioned, this also applies to the public area. Some private hospitals in the largest cities guarantee a standard comparable to that of western industrialized countries. In the economically strong Punjab and New Delhi in particular, health care is good in relation to other parts of the country. Almost all common drugs are available on the market. Medicines can be imported from abroad.
(Appendix A to the minutes of the negotiation)
In principle, it cannot be ruled out that non-governmental organizations may have the logistical skills to persecute people (e.g. who refuse to cooperate with terrorists or political opponents) on a supraregional basis. However, no such cases are mentioned in the present documents.
Since even the police are not always able to investigate even "high-profile" suspects, non-state actors (e.g. political parties, terrorists or criminal syndicates) should only be able to do so in exceptional cases. For private individuals who cannot make use of the logistics of an organization, this can practically be ruled out.
In addition to the regional search, there is also a Union-wide search list, on which, however, only people who are suspected of serious crimes are placed.
This search list is also used for border control and the most frequented airports for travel to and from Europe in New Delhi, Mumbai (Bombay), Calcutta and Chennai (Madras).
(Appendix B to the minutes of the negotiation)
With a population of 1.13 billion, India is the most populous democratic state in the world. Full freedom of movement is guaranteed. There is no government registration or registration system for Indian citizens, so a large part of the population does not have ID. This fact favors settling in another part of the country in the event of persecution.
(Appendix A to the minutes of the negotiation)
The possibilities of creating a livelihood outside of your closer home in India depend, as I regularly say, very much on the individual abilities, knowledge and physical condition and can be significantly increased with the support of relatives, friends or fellow believers.
Even for unqualified but healthy people it will usually be possible to make a living through odd jobs (in the worst case as dishwasher, garbage collector, warehouse worker, rickshaw driver, etc.).
(Appendix B to the minutes of the negotiation)
In India there are conflicts between the central government and Maoist rebels to varying degrees. Lately the clashes between the government and Maoist rebel groups, which have established themselves in many states of the Indian national territory and with their strategy of denouncing the unjust distribution of Indian wealth, can win approval and supporters for their cause. They draw their support from the poorest sections of the population, the Dalits and Adivasis, who have not benefited from the upswing in India in recent years or who have suffered from it, for example through expropriations. The Naxalites are part of the communist movement in India. The communist movement in India is divided into two groups. On the one hand in that part of the movement that has already found the democratic path through participation in the democratic process in the form of a party - such as the
Communist Party of India / Marxist (CPI / M) - and those groups that fight underground against the government - like the Communist Party of India (Maoist), to which the Naxalites belong. The proclaimed goals of the Naxalites are to support the landless, poor and members of the lower castes and to gain state power. Various sources claim that the Naxalites represent the "greatest internal security threat" 1 for the Indian government. It is therefore a primary concern of the government under Manmohan Singh to fight the Naxalites militarily on the one hand and, on the other hand, to deprive them of the basis of their support in the population with the help of economic development programs. This project enjoys such a high status in the current government that it has been included in the government program for the current legislative period.
(Appendix C to the minutes of the negotiation)
The findings made regarding the person result from the complainant's submissions, which are only credible in this regard. The general situation arises from the respective cited sources, the content of which cannot be doubted, and which the complainant did not specifically contest.
Insofar as the complainant submits circumstances according to which there is a specific risk to his person in India, the submission is not credible due to the following considerations:
The complainant's arguments remained contradictory on essential points. During his interrogation at the Federal Asylum Office on February 6, 2006, the complainant stated that he had worked for the XXXX association since February 2005, and on December 10, 2007 he stated to the Federal Asylum Office that he had been elected President of an association called XXXX on October 12, 2005 He finally claimed at the Asylum Court that he had been with the above-mentioned association since October 2005 and that he had held this position for five months. Furthermore, on February 6, 2006, the complainant reported to the Federal Asylum Office that the Naxalites had come on October 12, 2005; according to his statements on December 10, 2007, he would have been elected President of the XXXX Association on this date and about a month later the Naxalites appeared at his home, whereas the complainant ultimately stated at the Asylum Court that the Naxalites had come in December 2005. The complainant stated on December 10th, 2007 that he had been visited by six or seven Naxalites at home during the night and that they had demanded a sum of one million rupees alleged at the Asylum Court that the Naxalites had asked for one million rupees, that they had tried to negotiate to reduce the amount by half, the applicant said that he had no money and therefore could not pay the money. As a result, the complainant was asked at the Asylum Court whether he had ever had contact with the Naxalites, whereupon, contrary to the information given above, he stated on the record that he had no contact with the Naxalites and that he was not present at home been. The complainant then alleged that the Naxalites had informed the family about this, but it cannot be understood why the complainant then expressly stated on the record that he had negotiated with the Naxalites about the amount of money. He also stated at the Federal Asylum Office on December 10, 2007 that he had gone to see his sister ten days after the Naxalites had been with them, whereas he claimed at the Asylum Court that he was with his sister the night the Naxalites came Sister was visiting another village. If the complainant stated on February 6th, 2006 that the Naxalites had written their demands on pieces of paper, he stated on December 10th, 2007 that he had sent the piece of paper with the address to which he should have sent the amount of 500,000 rupees , still have, this is also at home, the complainant then submitted a slip of paper, which, however, does not contain the address to where he should have sent the money. At the Asylum Court, he then stated that he had only received one document, namely the slip that was presented, only to indicate that his father had been given the address where he should have brought one million or 500,000 rupees . However, all of these inconclusive information on the written material that came from the Naxalites also show that the complainant did not stick to the truth, whereby the slip of paper presented has little evidential value as everyone prepares and writes such a slip can submit. Finally, with regard to the submission of the certificate regarding the association, it should be noted that the complainant at the Asylum Court could not even name the person who, according to the certificate, was the deputy chairman at the time, but instead named another person, so that even this certificate remained doubtful. In the end, however, it can be left open whether he worked for the aforementioned association; the complainant could not make a threatening situation credible, at least with regard to the grossly contradicting information on the threatening situation.
Overall, such gross contradictions have emerged that the only permissible conclusion is that the complainant's allegations regarding a threatening situation do not correspond to the facts.
The legal result is the following:
According to Section 75 (7) of the Asylum Act 2005, Federal Law Gazette I No. 100/2005 as amended (AsylG 2005), proceedings that are pending at the independent Federal Asylum Senate on July 1, 2008 are to be continued by the Asylum Court.
According to § 23 of the Asylum Court Act, Federal Law Gazette I No. 4/2008 as amended (AsylGHG), unless otherwise stated in the Asylum Act 2005 - AsylG 2005, Federal Law Gazette I No. 100, the provisions apply to the procedure before the Asylum Court of the General Administrative Procedure Act 1991 - AVG, Federal Law Gazette No. 51, with the proviso that the term "appeal" is replaced by the term "appeal".
Regarding ruling point I. of the first instance decision:
Pursuant to Section 3 (1) AsylG, an alien who has submitted an application for international protection in Austria, unless this application has to be rejected due to third-country security or the jurisdiction of another country, is granted asylum status if it is credible that he is in the country of origin Persecution within the meaning of Art. 1 Section AZ 2 GFK threatens.
Refugee within the meaning of Art. 1 Section AZ 2 GFK is someone who is outside his home country and not in the country for well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a certain social group or political convictions Is unwilling to avail himself of the protection of this land in view of this situation or in view of that fear; or who is stateless, is outside the country of his habitual residence as a result of the above circumstances and is unable or unwilling to return to this country in view of this fear.
The central element of the term refugee is the "well-founded fear of persecution". A well-founded fear of persecution exists when, objectively, a person has reason to fear persecution in the individual situation of the asylum seeker. A "risk of persecution" is required, whereby persecution is to be understood as an intrusion of considerable intensity into the sphere of the individual to be protected by the state, which is capable of reducing the unreasonableness of the protection of the home state or the return to the country of the previous stay to justify. The risk of persecution must be due to the reasons stated in the Geneva Refugee Convention and must in turn be the cause of the person in question being outside their home country or the country of their previous stay. The risk of persecution must be attributable to the country of origin or the country of the last habitual residence. Imputability does not just mean causing, but also denotes responsibility in relation to the existing risk of persecution. The risk of persecution must be current, which means that it must be available at the time of the notification. Past acts of persecution that have already been set represent an essential indicator in the evidence procedure for an existing risk of persecution to be expected per futuro.
Circumstances that individually and specifically affect the complainant and could indicate that the complainant was being specifically persecuted could not be ascertained. Accordingly, the complainant's submissions do not result in any asylum-related risk of persecution. According to the constant judicature of the Administrative Court, the assessment of the existence of reasons for fleeing always depends on the specific situation of the respective asylum seeker, but not on the general political situation. There are also insufficient indications that something can be gained for the complainant from the general situation alone, especially since there are insufficient indications that the complainant is likely to have to fear persecution simply because he belongs to a group. Although it is not overlooked that human rights violations can occur in India, the number of people living there must also be taken into account (over 1 billion people), which puts the number of reported attacks into perspective, so that these reports are also taken into account In the case of human rights violations, no asylum-relevant or in the area of § 8 AsylG relevant risk of persecution regarding the complainant can be identified with a significant degree of probability due to the general situation alone.
The findings also show that the complainant would be able to evade any repression, especially since the complainant's submissions do not show that he himself was an exposed person who would be sought nationwide, which is already evident from the fact that the complainant According to his statements, the complainant has legally left his home country. The findings show that non-governmental organizations are only able to research people in exceptional cases.
Since there are possibilities of existence for the complainant outside of his home region (see above statements), it is also reasonable for him to go to another part of India. The prerequisites for the existence of a domestic flight alternative are given, which is why the granting of asylum cannot be considered for this reason (cf. VwGH January 24, 2008, 2006/19/0985).
Since there are no circumstances according to which it would be sufficiently likely that the complainant would be threatened in a way relevant to asylum in his home country, the rejection of the application for international protection with regard to the granting of the status of a person entitled to asylum by the Federal Asylum Office is not objectionable.
Regarding ruling point II. Of the first instance decision:
According to Section 8 (1) AsylG, the status of beneficiary of subsidiary protection is to be granted to an alien 1. who has submitted an application for international protection in Austria if this is rejected in relation to the granting of the status of beneficiary or 2. who has the status of A person entitled to asylum has been denied if a rejection, deportation or deportation of the alien to his country of origin would mean a real risk of a violation of Art. 2 ECHR, Art. 3 ECHR or Protocols No. 6 or No. 13 to the Convention or for him as Civil person would pose a serious threat to life or integrity as a result of indiscriminate violence in the context of an international or domestic conflict.
According to the judicature of the VwGH, the assessment of the existence of an actual risk requires a holistic assessment of the risk of the measures that end the stay for the admissibility under the aspect of Art.3 ECHR also otherwise valid standard of "real risk", whereby the risk prognosis has to refer to the personal situation of the person concerned in relation to the general human rights situation in the target country (cf. VwGH of March 31, 2005, Zl. 2002/20/0582, Zl . 2005/20/0095). When examining circumstances outside of the state's responsibility, the applicant's removal from the country can only constitute a violation of Art. 3 ECHR if exceptional, exceptional circumstances are substantiated (see ECHR, judgment of 02/06/2001, complaint no. 44599/98, Bensaid v United Kingdom; VwGH 21.08.2001, Zl. 2000/01/0443).
As the assessment of the evidence has shown, the complainant's submission with regard to a risk of persecution affecting himself is completely implausible, which is why, based on the complainant's specific submissions, no threat within the meaning of Section 8 AsylG can be recognized.
Here, too, the alternative justification given above to ruling point I. of the first instance decision is relevant (domestic flight alternative), which is why reference is made to this and for this reason too, granting of protection within the meaning of Section 8 AsylG is out of the question.
However, the general situation alone does not provide sufficient evidence that it would be sufficiently likely that the complainant would be threatened in the event of a return within the meaning of Section 8 AsylG. Reference is made to the statements made above on point I. of the first instance decision and also relevant here.
In view of the findings on the general situation, according to which the population is guaranteed basic food supplies, it cannot be assumed that the complainant, who grew up in India, would find himself in a hopeless situation if he returned. The complainant is a healthy, able-bodied man who, according to his own statements, worked on his own farm until he left, so that it is reasonable for him to (again) secure the necessary livelihood in his home country. He also has social points of contact in his home country, his father, his wife and his two children are still in India, which is why it cannot be assumed that the complainant would find himself in a life-threatening emergency if he returned. Difficult living conditions are not sufficient for protection within the meaning of § 8 AsylG.
Since there are therefore no reasons to assume that the complainant would be threatened in the home country within the meaning of § 8 AsylG, the rejection of the application for international protection with regard to the granting of the status of a person entitled to subsidiary protection in relation to India by the Federal Asylum Office is ultimately not allowed complain.
On point III. of the first instance decision:
Pursuant to Section 10, Paragraph 1, Item 2 of the Asylum Act 2005 in the version of Federal Law Gazette I No. 122/2009, a decision under this federal law must be combined with an expulsion if the application for international protection relates to both the granting of asylum status and Status of beneficiary of subsidiary protection is rejected.
According to Section 10 (2) AsylG, expulsions according to Section 1 are not permitted if 1. the alien has a right of residence that is not based on this federal law in individual cases or 2. this would constitute a violation of Article 8 of the ECHR. In particular, the following must be taken into account: the type and duration of the previous stay and the question of whether the previous stay of the alien was unlawful;
the actual existence of family life; the need to protect private life; the degree of integration; the ties to the foreigner's country of origin; the integrity of the criminal court;
Violations of public order, in particular in the area of asylum, aliens police and immigration law, as well as the question of whether the alien's private and family life came into being at a time when those involved were aware of their uncertain residence status.
If its implementation would violate Art. 3 MRK for reasons that are not permanent and do not affect the person of the asylum seeker, the implementation must be postponed for the necessary time in accordance with Section 10 (3) AsylG.
According to Section 10 (5) AsylG 2005, reasons must be given about the admissibility of the expulsion, in particular with regard to whether it is permanently inadmissible in accordance with Section 10 (2) no.2. The inadmissibility of expulsion is only permanent if the otherwise threatened violation of private and family life is based on circumstances that are by their nature not merely temporary. This is particularly the case if the expulsion is not permitted simply because of private and family life with regard to Austrian citizens or persons who have a right of permanent establishment under Community law (Sections 45 and 48 or Sections 51 ff NAG) would.
In the event of an expulsion decision, Article 8 of the ECHR must be taken into account (VfGH of October 15, 2004, G 237/03, VfGH of March 17, 2005, G 78/04 and others). According to Art. 8 ECHR everyone has the right to respect for his private and family life, his home and his correspondence. 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 that in a democratic society for national security, public peace and order, the the economic well-being 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.
Since the complainant has no kinship or family ties in the federal territory, there is in any case no violation of the right to family life within the meaning of Art. 8 ECHR.
In addition, the expulsion is justified in any case if the matter is weighed up within the meaning of Art. 8 Para. 2 ECHR.
When examining the admissibility of expulsions and the associated encroachment on private and family life, a case-by-case check must be carried out, which must not be exhausted in the formulas of Article 8 ECHR, but rather deal with the individual life situation of the person affected by the expulsion got to. As the Constitutional Court has shown in its ruling of September 29, 2007, B328 / 07, a number of criteria can be derived from the judicature of the European Court of Justice, which must be taken into account when weighing up interests. These include, above all, the length of stay, which is not linked to any fixed time requirements (ECHR of January 31, 2006, 50.435 / 99), the actual existence of a family life (ECHR of May 28, 1985, 9214/80, 9473/81, 9474/81 et al.) and its intensity (ECHR dated 02.08.2001, 54.273 / 00), the degree of integration, which manifests itself in close ties to relatives and friends, self-sufficiency, school or vocational training, employment and similar circumstances (ECHR of 04.10.2001, 43.359 / 98 et al.), the connection to the home country, the criminal justice, but also violations of immigration law and the requirements of public order (ECHR of 24.11.1998, 40.447 / 98 et al.) and the question, whether private and family life came into being at a point in time when those involved were aware of their uncertain residence status (ECHR of 24.11.1998, 40.447 / 98 etc.).
The complainant just speaks very little German, he has no Austrian circle of friends, he distributes newspapers, but does not do any regular legal work. He has no family ties in Germany, whereas his father, wife and two children are in his home country. A solidification of residence in the federal territory can therefore in no way be recognized. The applicant's four and a half year stay in the federal territory is further reduced by the fact that he was based solely on an ultimately unjustified asylum application.
According to the established case law of the Administrative Court, the norms regulating the entry and residence of foreigners are of great importance from the point of view of the protection and maintenance of public order (Article 8 (2) ECHR) (VwGH January 16, 2001, Zl. 2000/18/0251, and many others).
The VwGH has recognized that persistent illegal stay of an alien after the asylum procedure has been finalized or a longer period of illegal residence would pose a serious threat to public order with regard to an orderly immigration system, which makes expulsion urgently necessary (VwGH 31.10. 2002, Zl. 2002/18/0190).
The private interests in remaining in the federal territory are therefore - as explained above - due to a lack of sufficient ties to the federal territory, not so pronounced that they outweigh the public interests, but rather the weighty public interest in an orderly foreign system, which is why even if there is a private and Family life in the federal territory the expulsion is justified.
It was therefore to be decided according to the ruling.
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