Registered before the CJEU under C-222/22:

The case concerned a subsequent application submitted by an Iranian applicant whose first asylum application was rejected. In the subsequent application, the applicant alleged that he has changed his religion after the first application for international protection was rejected. He is now a Christian and fears persecution in Iran for this reason.

The Federal Office for Immigration and Asylum (BFA) considered that this submission was credible and that there was a risk of persecution in the country of origin. Because the conversion is a subjective reason analysis in a subsequent application procedure, the BFA considered that asylum status can not be granted, but only subsidiary protection is to be granted.

The applicant complained before the Federal Administrative Court which upheld the complaint and granted the applicant the refugee status based on § 3  par 2 second sentence of the Asylum Act 2005  and stated that the legislative provision is to be interpreted in such a way that granting asylum status is only ruled out if the reasons for subsequent flight were brought with an intention to abuse the system, which was not found in this case. The BAF has appealed against this decision.

The Supreme Administrative Court decided to stay the proceedings and to submit a question to the CJEU for a preliminary ruling and the interpretation of Art. 5 par. 3 of the recast QD, on the basis of which the provision of §3  par. 2 second sentence of the Asylum Act 2005 has been adopted.

According to  Art. 5  par 3 of the recast QD and to the Geneva Refugee Convention, Member States can stipulate that an applicant who submits a subsequent application is generally not recognised as a refugee if the risk of persecution is based on circumstances that the applicant created himself after leaving his country of origin. The Supreme Administrative Court considered that the wording of the abovementioned provisions of the recast QD and Geneva Convention require interpretation.

The referring court considered that the provision mentioned could be understood as meaning that the provisions of the Geneva Convention must also be observed without restriction in subsequent applications. Consequently, there would be no possibility for the Member States to refuse the granting of asylum on the basis of a subjective reason. With such an interpretation, there would possibly be an increase in requirements when assessing the credibility in the subsequent application.

Also,  Art . 5  par. 3 of the recast QD can be interpreted as meaning that if a subjective reason for subsequent application is asserted, the granting of asylum can be excluded in accordance with national regulations, unless the applicant can prove that the reason for the subsequent application was not abusive.

The question referred is as follows:
Is Art. 5 Para. 3 of the recast QD to be interpreted as meaning that, as a rule, the status of a person entitled to asylum is not granted if the risk of persecution is based on circumstances that the third country national has created himself after leaving his country of origin, unless the activities concerned are permitted in Austria, which are demonstrably the expression and continuation of a belief already existing in the country of origin?