A Somali national lodged an application for international protection in Austria on 3 July 2023. She argued that she had been subjected to genital mutilation (FGM) against her will in 2016, and she feared to be subjected to reinfibulation upon return, as a gynaecologist in Austria had explained to her that she was no longer ‘sewn up’. In addition, she submitted that her father had threatened her to forcibly marry her to an older man.

On 7 November 2023, the Federal Office for Immigration and Asylum (BFA) rejected her application with regards to refugee status but granted her subsidiary protection and a temporary residence permit. The appeal against the refusal to be granted refugee status was dismissed by the Federal Administrative Court (BVwG) considering, that she was not threatened with further genital mutilation against her will because the form of genital mutilation carried out in her case was currently one of the most common forms of female mutilation in Somalia, whereby the rate of infibulations throughout the country was considered to be declining. The applicant submitted an extraordinary appeal referring to a more detailed report by the BFA of August 2023 showing that there are cases in which a new infibulation is carried out to achieve a more comprehensive female genital mutilation (FGM) than the original one and that this is done if the existing FGM is not considered appropriate or sufficient.

The Supreme Administrative Court annulled the decision considering that there were deficiencies in the investigation and its reasoning. It held that the reasoning of the BVwG was insufficient as it confined itself to finding that there was a trend towards less invasive forms of mutilation in Somalia and the number of infibulations was declining; however, the court held that that aspect alone could not explain in a comprehensible way why the applicant would no longer be subjected to gender-specific persecution.

The court noted that according to relevant country of origin information, FGM/C remains the norm in Somalia, although there is a trend away from the more extreme forms to slightly less invasive forms. Acknowledging there were few current data, the court emphasised that even less invasive forms of female genital mutilation constitute a serious encroachment on the fundamental human rights of women, since it constitutes an injury to the external female genital organs for non-medical reasons without consent or against the will of the persons concerned.

The court further noted that the BVwG did not deal with the applicant’s submissions expressing fear that her female genitalia would be mutilated again if she returned to Somalia as a man she was going to marry, could ask why she was not "sewn up" anymore. The court highlighted that the BVwG did not determine whether the applicant’s submissions were correct, nor whether her fear of a renewed encroachment on her physical integrity was considered in relevant country reports, which the court remarked are to be taken into account by the BVwG ex officio. In this respect, the court emphasised that recent country reports pointed to the risk of bring subjected to a new form of FGM/C ("reinfibulation", also known as "re-excision") if the existing one is not considered appropriate or sufficient and that this could be done, for example, before marriage.