AS TO THE ADMISSIBILITY OF
Application No. 23822/94
by Tan Si LAM
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 February 1994
by Tan Si LAM against Austria and registered on 11 April 1994 under
file No. 23822/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, a Vietnamese national born in 1966, resides in Hof
(Austria). Before the Commission he is represented by Mr. H.
Pochieser, a lawyer practising in Vienna.
On 17 May 1991 the applicant arrived in Austria. On 22 May 1991
he filed a request for asylum with the Baden District Administrative
Authority (Bezirkshauptmannschaft).
On 23 May 1991 the Baden District Authority issued a deportation
order (Ausweisungsbescheid) against the applicant. It found that he
had circumvented the border control when entering Austria. Having
further noted that the applicant had filed an asylum request, it
decided that pending the proceedings on his asylum request the
deportation order should not be enforced. It also observed that an
appeal against the deportation order had no suspensive effect.
On 28 May 1991 the applicant was questioned by the Public
Security Authority of Niederösterreich (Sicherheitsdirektion) on his
asylum request. He stated that his parents had been landowners in
Vietnam who had been expropriated by the Communists and subsequently
extorted by the police. In 1983 he had finished his secondary
education but had not been admitted to University. In May 1984 he had
attempted to escape from Vietnam, but had been caught and committed to
a reeducation camp, where he had stayed until August 1984. By bribing
officials he had obtained a travel and work permit for Czechoslovakia
valid until 1992. He had arrived in Czechoslovakia in 1987. There he
had participated in Catholic religious assemblies organized by fellow
country-men, although he himself was not a Catholic. The
Czechoslovakian authorities therefore had seized his passport and
intended to expel him to Vietnam on 20 May 1991. For fear of reprisals
in his home country, he had come to Austria.
On 19 June 1991 the Public Security Authority dismissed his
asylum request. Referring to his statements of 28 May 1991 it found
that the applicant was not a refugee within the meaning of the Geneva
Refugee Convention.
On 24 March 1992 the Federal Minister for the Interior
(Bundesminister für Inneres) dismissed the applicant's appeal. The
Minister found, inter alia, that the refusal to admit him to University
did not amount to persecution as he had had the possibility to finish
his secondary education and therefore had not been generally denied
access to education institutions. The fact that he had been committed
to a reeducation camp in 1984 was not relevant as this had happened a
long time ago. Furthermore, he subsequently had obtained the
permission to leave his country in order to work in Czechoslovakia.
If the authorities of his home country would have intended to impose
sanctions on him, they would not have allowed him to leave the country.
The Minister also found that the applicant failed to substantiate the
risk that he would face persecution for his participation in religious
assemblies. The Minister also noted that the United Nations High
Commissioner for Refugees had been heard and had expressed a negative
opinion as to his request for asylum.
On 29 September 1992 the Constitutional Court (Verfassungs-
gerichtshof) refused to entertain the applicant's complaint against the
Minister's decision and referred the case to the Administrative Court
(Verwaltungsgerichtshof).
On 9 September 1993 the Administrative Court dismissed the
applicant's complaint. The Administrative Court conceded in particular
that the fact that the applicant had evaded his expulsion by the
Czechoslovakian authorities to Vietnam could constitute an offence
under the Vietnamese Penal Code. However the fear of being prosecuted
for violation of provisions regulating the sojourn of Vietnamese
nationals abroad was no sufficient reason for granting refugee status.
COMPLAINTS
1. The applicant complains about the deportation order issued
against him. He submits that if expelled to Vietnam he will be
prosecuted for failure to return at the expiry of his travel permit and
that a prison sentence is likely to be imposed on him. He could even
be admitted to a reeducation camp. He invokes Articles 2, 3, 4, 5 and
6 of the Convention.
2. The applicant further complains under Article 13 of the
Convention that he had no efficient remedy to complain that his
expulsion to Vietnam would violate his rights under the Convention.
He submits that in the course of the asylum proceedings no decision was
taken to which specific country he would be expelled after his
unsuccessful asylum request and that therefore he has not been able to
challenge the decision.
THE LAW
1. The applicant complains under Articles 2, 3, 4, 5 and 6
(Art. 2, 3, 4, 5, 6) of the Convention about the deportation order
issued against him.
The Commission has examined the applicant's complaint under
Article 3 (Art. 3) of the Convention, which reads as follows:
"No one shall be subject to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that the Contracting States have the right
to control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). However,
expulsion by a Contracting State of an asylum seeker may give rise to
an issue under Article 3 (Art. 3) of the Convention and hence engage
the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person
concerned would face a real risk of being subjected to torture or to
inhuman or degrading treatment or punishment in the country to which
he is to be expelled (ibid., para. 103). A mere possibility of
ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).
The Commission observes that the Austrian police authorities
refused the applicant's request for political asylum as they found that
he had failed to substantiate a risk of being persecuted in Vietnam
upon his return and that the United Nations High Commissioner for
Refugees did not object to this finding of the authorities.
The Commission finds in particular that the risk of prosecution,
upon his return to Vietnam for failure to return to Vietnam on the
expiry of his travel permit, does not in itself constitute treatment
contrary to Article 3 (Art. 3) of the Convention (cf. mutatis mutandis
No. 11017/84, Dec. 13.3.86, D.R. 46 p. 181; No. 12364/86,
Dec. 17.10.86, D.R. 50 p. 289).
Moreover, the Commission considers that the applicant has not
shown any further serious risk of being prosecuted on other grounds or
otherwise exposed to treatment prohibited by Article 3 (Art. 3) of the
Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains further under Article 13 (Art. 13) of the
Convention that he had no efficient remedy to complain that his
expulsion to Vietnam would violate his rights under the Convention.
The Commission recalls that Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (Eur. Court H.R., Powell and Rayner judgment of
21 February 1990, Series A no. 172, p. 14, para. 31).
The Commission, having regard to the above findings, considers
that the applicant's submissions do not give rise to a prima facie
issue under Article 3 (Art. 3) of the Convention, and thus cannot be
considered to be an arguable claim. Consequently, Article 13 (Art. 13)
of the Convention does not apply in respect of the applicant's
complaint under Article 3 (Art. 3) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy