ONYEJIEKWE v. AUSTRIA
Inadmissible
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Mr Ikechukwu Romanus Onyejiekwe, is a Nigerian national, who was born in 1978 and lives in Vienna. He was represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant requested asylum in Austria on 5 September 2003 under a false name, giving a false date of birth. He claimed that he had fled Nigeria after a violent conflict between two neighbouring villages over land. His mother had been killed in a hospital and he had no family left in Nigeria. 5. On 14 September 2004 the Vienna Regional Court (Landesgericht für Strafsachen Wien) convicted the applicant of drug trafficking and attempted drug trafficking, finding that the trafficking had been repeated and large scale in nature, and sentenced him to twenty months’ imprisonment. 6. Thereupon, an exclusion order (Aufenthaltsverbot) was issued against the applicant on 7 October 2004, which became final. 7. On 21 January 2005 the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request and ordered his expulsion to Nigeria. The Federal Asylum Office found the applicant’s reasons for having fled Nigeria to be vague, lacking substantiation and thus not credible. 8. The applicant appealed against that decision and notified the Independent Asylum Panel (Unabhängiger Bundesasylsenat) on 31 October 2005 of his real name and date of birth. 9. After having served thirteen months of his prison sentence, the applicant was conditionally released from prison on 28 May 2005. 10. On 2 December 2005 the applicant married an Austrian citizen. 11. On 6 October 2006 the Independent Asylum Panel held a hearing, during which the applicant explained that he had given a false name to the Austrian authorities to protect himself, but that he now wanted to disclose the real reasons for his having fled Nigeria. He continued by stating that he had been a driver for a regional minister who had accused him of having been involved in a plot to kill him in 2003. After the failed assassination attempt, corrupt police officers and soldiers had started to round people up and to arrest them. The applicant himself had gone to a friend’s house and had hidden there for a few days until he had heard that his mother had been shot by the minister’s guards because she would not tell them the applicant’s whereabouts. Thereupon, the applicant had left for Lagos, but it had not been safe there either and he had been shot at. 12. On 19 October 2006 the Independent Asylum Panel dismissed the applicant’s appeal, holding that his story was not credible, as what he had told the Panel was entirely different to what he had told the Federal Asylum Office. Furthermore, his “new” reasons for having fled were again very vague, lacking important details and unconvincing. The Independent Asylum Panel made some observations concerning the general situation in Nigeria and with regard to Decree no. 33, a law penalising “harming the reputation of Nigeria abroad”. It held that while Nigerian citizens who were expelled from another country for having committed a drug-related crime were in principle liable to be punished under Decree no. 33 with a prison sentence, no incident in which an expelled asylum seeker had been arrested at the airport for political motives upon returning to Nigeria had been recorded according to a country information report produced by the German Ministry for Foreign Affairs. With regard to Article 8 of the Convention, the Independent Asylum Panel held that the applicant’s expulsion was justified under the second paragraph of that provision in view of his criminal conviction under the Drug Offences Act. 13. The applicant complained to the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof), applying for his complaint to have suspensive effect and for legal aid. 14. On 6 December 2006 the Administrative Court granted suspensive effect to the applicant’s complaint. 15. On 16 January 2007 the Constitutional Court refused to grant the applicant legal aid due to the complaint’s lack of prospects of success. 16. Finally, on 9 September 2010 the Administrative Court refused to deal with the applicant’s complaint due to the lack of an important legal issue. That decision was served on the applicant’s counsel on 29 September 2010. 17. The Asylum Act 1997 (Asylgesetz 1997), applicable at the relevant time, governed the conditions under which asylum could be granted to asylum seekers and asylum proceedings. Its Article 8 § 2 provided that after the asylum authority had dismissed an asylum request and had declared expulsion to the asylum seeker’s country of origin permissible, it should combine the dismissal of the request with an expulsion order. 18. Current information on Nigerian Decree no. 33 of 1990 is scarce. The Nigerian National Drug Law Enforcement Agency (“NDLEA”), established by the Decree no. 48 in 1989, points to the National Drug Law Enforcement (Amendment) Decree no. 33 as another measure adopted in dealing with the problem of illegal drugs. As stated on the Agency’s website (www.ndlea.gov.ng), Decree no. 33 prescribes a prison term of five years for persons convicted of trafficking in drugs abroad, and by so doing bringing Nigeria into disrepute. 19. The United Kingdom Border Agency Country of Origin Information Report on Nigeria of 9 July 2010 (“the COI Report”) referred to a BritishDanish fact-finding mission in 2007 and 2008, during which senior officials of the NDLEA were interviewed about the enforcement of Decree no. 33 of 1990. The NDLEA officials had stated that Decree no. 33 had been enforced from 1990 to 2000. Between 1996 and 2000, NDLEA statistical information had shown that 451 Nigerians had been prosecuted and convicted under the provisions of Decree no. 33. The NDLEA officials had further stated that in 2000 the Agency had reviewed the enforcement of Decree no. 33 and had suspended prosecutions under the Decree. This step had been taken in response to public concern that the Agency had prosecuted people who had been convicted of drug offences abroad twice for the same offence. Consequently, since 2001, there had been no prosecutions of returning Nigerians convicted of drug offences abroad under the provisions of Decree no. 33. NDLEA officials had finally explained that immigration officials in Nigeria were normally informed of a deportation before the individual concerned was deported. Once a deportee arrived in Nigeria, NDLEA officers monitored the activities of the individual, but did not take any action to arrest him or her (see page 46 of the COI Report, at paragraphs 13.03 and 13.04).