Lexploria

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)

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LAM v. AUSTRIA

LAM v. AUSTRIA

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