Have you ever had a false identity?

dish

REASONS FOR DECISION:

I. Procedure:

The complainant, a Nepalese national, applied for international protection on July 2nd, 2015.

In the first interview on July 14, 2015, the complainant stated that the name was XXXX. He also stated that he had quarreled with his foster parents because he had not received Nepalese citizenship because they had not supported him in that he had started to work in a hotel. He told a hotel customer, an Indian, about his problems, whereupon he told him that he could help him to get to a safe country where there were human rights and he would get a status. He only asked for four passport photos and a sum of 4,500 euros. After the earthquake about two months ago, the hotel was completely destroyed, whereupon the complainant had to live on the street. He tried to contact his foster parents. They would have had nothing more to do with him. He had lived on the street for a total of three days, then he contacted the Indian named above. He lived with this Indian for about four days. The complainant then decided at the end of 2015 to leave his country, which he subsequently left by air. He left his country because he has no identity in Nepal. In addition, after the earthquake about two months ago, he had no home, no work and survival was not possible in this country. That is the reason for his departure from Nepal.

The complainant then presented a Nepalese driver's license with the identity XXXX.

In a letter from his legal representative dated November 4, 2016, the complainant announced that his real name was XXXX. He had used a false identity in the previous proceedings. He regrets this behavior very much and is now correcting the identity of his own free will. Reference is made to the enclosed birth certificate. In addition, a voluntary report was submitted to the Wels public prosecutor.

The public prosecutor's office in Wels informed the complainant in a letter dated January 12, 2017 that the proceedings against him had been discontinued.

On November 20, 2017, the complainant was questioned by the Federal Office for Immigration and Asylum, the complainant essentially making the following:

He had given a false name when he applied for asylum. In April 2017, he filed a voluntary disclosure with the public prosecutor's office. When asked whether he would be represented in the proceedings, he stated that no, he had previously been represented, but had not been for six months. His health is very good. He is not undergoing medical treatment or any other therapy, he is not taking any medication. As a result, the complainant was asked some questions in German, but he did not understand the respective questions. The complainant stated that he could only speak a very small amount of German. He speaks Nepali, English and very little German. So far, he has not told the truth. The smuggler advised him not to tell the truth. He is a Nepalese citizen, belongs to the Nepali ethnic group and professes Hinduism. He is single and has no children. His parents are also citizens of Nepal. The complainant submitted a confirmation of kinship in English dated May 16, 2016 and police information in English dated May 22, 2016. He had these documents from his parents, they had sent them to him. His passport is in Nepal. When asked whether he could obtain originals or copies of these documents, he stated that he did not want his passport to be in Austria. He doesn't want to go back to Nepal, he wants to stay here. He has a driver's license, and he has it sent to him. He went to primary school in Nepal for ten years. He then went to college for four years. After school, he worked in hotel management until he left the country. In addition to his parents, he also has a sister who is married and has two children. You live in Nepal. He also has five uncles and three aunts in Nepal. When asked about the living conditions of his relatives, he stated that they belonged to the middle class. The first time he thought of leaving his country of origin was when the great earthquake struck in Nepal, and he lost his job at the time. His job was completely destroyed, including his house. Normally he always sent money to his parents, which was then no longer possible for him. That's why he left his home. The last night before his departure he was staying in a hotel in Kathmandu. After the earthquake, he was always traveling between Kathmandu and his hometown. There he slept with his parents. In Kathmandu in a tent. He was only accommodated in a hotel for the last night. When asked what type of accommodation his home address was, he stated that it used to be a village and that there were tents there after the earthquake. But there are still a few houses that were still standing. He entered Austria with the help of a tractor and paid 3,000 euros for it. He paid for this from his savings, and his boss also helped him. In his home country he had neither a criminal record, nor had he ever stood trial and was never imprisoned. He said he had no problems whatsoever with the authorities at home, he used to have problems with the Maoists, but that was 16 to 17 years ago. Since then he has had no more problems. There were no search measures against him, he was not politically active and also not a member of an organization. Because of his religious denomination or his ethnic group, he had no problems, just as he had no problems with private individuals. He did not take part in any violent clashes in his home country.

When asked about his reasons for leaving the country, he stated that there had been a major earthquake in his homeland, which caused him to lose his job. The hotel was completely destroyed. He also no longer had a place to live. Until then, the complainant had financially supported his parents. This was then no longer possible. He saw no more future in Nepal. This is the reason why he left his home. In his homeland he saw no way to lead a good life in Nepal. His parents would also be more worried about him when he was in Nepal. He tried to live with his parents, but his parents also needed financial support. He did not try to gain a foothold in any other part of the country. He tried to get a job in Kathmandu, but couldn't find one. If you can't find a job there, you won't find a job anywhere in your home country. That is why he left his home to make a living elsewhere. Apart from the reason for fleeing just described, there are no reasons why he left his home country. He would only have been a burden to his parents if he had stayed in Nepal. He has fully described his problems. He has no family interests in Germany. He lives with a friend, but he is only a friend, they have no relationship. He has no relatives in Germany. Furthermore, he has no private interests in Austria. In the federal territory he is in the Nepal Association, he is a member there, this association looks to see whether Nepalese need help in Austria. He does not attend any courses and has not completed any training in Germany. He used to live on basic services, now he lives on the support of his friend, and the complainant helps him deliver advertisements and newspapers. In return he could live and eat with him. He is not currently working, he is helping his friend. He had tried to get a work permit, but none was issued to him. He would also like to get a driver's license. Regarding his daily routine, he stated that he helped his friend deliver the newspapers for two to three hours at night. Sometimes he also receives orders from other friends to load or unload trucks. He gets around 10 to 25 euros for this. In the summer he often played football outdoors, but unfortunately that is not possible now. In Germany he was once in court, a friend had given false information and the complainant hit him. But this was all smashed, he was acquitted. He would like to learn German, stay here, he cannot do all the courses here, he has no money for it.

The complainant was given the opportunity to comment on a proviso, but he waived this and stated that he recognized the proviso.

With the contested decision of the Federal Office for Immigration and Asylum, the complainant's application for international protection in accordance with Section 3 (1) i. V. m. § 2 Abs. 1 Z. 13 AsylG regarding the granting of the status of the person entitled to asylum (ruling point I.) and according to § 8 Abs. 1 i. V. m. § 2 Abs. 1 Z. 13 AsylG with regard to the granting of the status of beneficiary of subsidiary protection in relation to the country of origin Nepal rejected (ruling point II.), A residence title not granted for reasons worthy of consideration according to § 57 AsylG (ruling point III .), according to § 10 Abs. 1 Z. 3 AsylG i. V. m. § 9 BFA-VG against the complainant a return decision according to § 52 Abs. 2 Z. 2 FPG issued (ruling point IV.) And established that his deportation to Nepal is permissible according to § 46 FPG (ruling point V. ). A complaint against this decision about his application for international protection was denied the suspensive effect according to § 18 Abs. 1 Z3 BFA-VG (ruling point VI.). According to Section 55 (1a) FPG, it was determined that there is no deadline for voluntary departure (point VII.).

The Federal Office for Immigration and Asylum stated that the complainant's reasons for fleeing were referring to the consequences of the earthquake of April 25, 2015 in his home country. As a result of this natural event, the complainant lost his job and thus also his place to live. According to the current country information, there is national and international aid for the reconstruction of his homeland. The authority assumes that it would have been possible for him to lead a life in Nepal without further ado. It is pointed out that it is very possible for his relatives to live in Nepal - despite the economic situation. The authority therefore assumes that it would also be possible for him to migrate to his home country without further ado, assuming a corresponding motivation to change his center of life. His application for international protection can not be traced back to a corresponding endangerment of his person in Nepal, but obviously to the desire for an easier or better life. The complainant had not brought any asylum or procedural persecution or threat to his person on record. His reasons are therefore to be regarded as being of a purely economic or private nature.

From a legal point of view, the Federal Office for Immigration and Asylum stated under point I. that the reason for the application was not alleged persecution for reasons of race, religion, nationality, membership of a certain social group or political views, but on the one hand the flight against poverty and, on the other hand, in the endeavor to secure an obviously better status and better medical care in the federal territory, which is why the granting of asylum is ruled out. There is no current persecution.

Even if all known facts were taken into account, the other outcome of the investigation would not have given any indications of the existence of a situation that would lead to the granting of asylum.

Regarding point II., The Federal Office for Immigration and Asylum stated that the existence of a risk situation according to § 50 FPG had already been checked under point I. and denied. With regard to Nepal, there are no indications that there is currently such an extreme dangerous situation that practically everyone - regardless of the existence of individual reasons - would be exposed to the concrete risk of a violation of the rights guaranteed by Article 3 ECHR. In addition, no indications emerged in the proceedings that the complainant would find himself in a life-threatening emergency in the event of a return home. His relatives could be available as a social safety net. It is also reasonable for him to seek support from humanitarian organizations. In addition, it was pointed out that the complainant was a healthy man who was able to work and who could at least finance his living with odd jobs. A resumption of his previous activity in the tourism industry would also be possible. Under no circumstances can it be assumed that, due to the general situation in his home country, the complainant could be forced into a hopeless situation in the event of a return, which could make a return home unreasonable. In the case at hand, taking into account all known facts, it should be noted that the extraordinary circumstances required by the ECHR did not exist.

On point III. the Federal Office for Immigration and Asylum stated that the requirements for issuing a residence permit in accordance with Section 57 AsylG were not met.

Regarding point IV., The Federal Office for Immigration and Asylum found that the complainant had no relatives or other procedural relationships in Austria, so that there was no family life worth protecting in Austria. With regard to private life, the Federal Office for Immigration and Asylum carried out a weighing up, stating that the complainant was not capable of self-sustaining in the federal territory, he was not active in an association promoting integration or volunteering in an organization and had no private interests in Austria cited. His knowledge of the German language can be described as rudimentary. In the present case, his private interest in remaining in Austria is to be valued less than the public interest in an orderly enforcement of foreign affairs. A return decision is therefore permissible.

Regarding ruling point V., the Federal Office for Immigration and Asylum stated that it had already been stated that there was no risk within the meaning of Section 50 (1) and (2) FPG, a provisional measure within the meaning of Section 50 (3) FPG was in not recommended in his case. It should therefore be stated that if the return decision can be enforced and if the conditions specified in Section 46 (1) 1 to 4 FPG are met, his deportation to Nepal is permissible.

On point VI. the Federal Office for Immigration and Asylum pointed out that the complainant had knowingly tried to deceive about his true identity in the context of the asylum application. He would have appeared under a false identity and the relevant driver's license turned out to be a total forgery. Furthermore, the complainant had a passport in his home country, but he would not want to present it to the Federal Office for Immigration and Asylum.

Regarding ruling point VII. The Federal Office for Immigration and Asylum stated that in his case a procedure according to § 18 BFA-VG would be feasible, so § 55 para. 1 a FPG would apply to him. He is therefore denied the deadline to leave the country voluntarily.

The complainant, through his representative, filed a timely complaint against this decision, in which he made the following submissions, insofar as they were essential:

In the wake of a major earthquake in his home country, he lost his job. Until then, he had supported his parents, but this was no longer possible. He no longer had a future in Nepal. This is the reason why he left his home. Here in Austria he was always treated respectfully and well and he was lucky enough to find people who support him in every way, be it financial, organizational or human. He has been in Austria for over two and a half years now. During this time he learned the language, integrated himself socially and built strong ties to Austria. He is a member of a Nepali association in Austria. If his submission could not be admitted as being relevant to asylum, he may apply for the status of beneficiary of subsidiary protection because his deportation for the reasons mentioned would mean a real risk of a violation of Article 2 and Article 3 of the ECHR. With regard to the situation in the event of his return, it was stated several times that he was a young man fit for work and that he would at least get a job as a laborer in the tourism industry at any time. The natural disaster and high unemployment caused him to leave his home.It will be difficult for him to gain a foothold in the job market and to provide for the necessary maintenance. Sufficient support from relatives is simply assumed by the authority without concrete evidence, but it cannot be assumed. It is to be feared that if he returns he will find himself in a hopeless situation.

II. The Federal Administrative Court has considered:

1. Findings:

About the complainant:

The complainant is a national of Nepal and professes Hinduism. In his home country, the complainant attended elementary school for ten years and college for four years. He then worked in hotel management. After the earthquake in Nepal, the complainant lost his job and subsequently decided to leave his home country for economic reasons. His parents, his married sister, five uncles and three aunts are in Nepal, with his relatives in Nepal belonging to the middle class. The complainant is healthy and able to work.

In the federal territory, the complainant made an application for international protection under a false identity using a forged driver's license, and subsequently corrected his identity. The applicant had his birth certificate and driver's license sent to him from his home country; he did not have his passport sent because he does not want to return to Nepal.

It cannot be determined that the applicant would find himself in a dire situation that threatened his existence if he returned to his home country.

The complainant has no family members in Germany. His knowledge of German is very poor. So far, he has not attended any German or other courses. The complainant does not pursue regular legal work. He lives with a friend whom he helps delivering newspapers and occasionally helps out with other work. The complainant is a member of a Nepalese association that takes care of the affairs of the Nepalese in Austria, otherwise the complainant is not active in any associations or other organizations.

On the situation in Nepal:

Political situation

Nepal has an area of ​​approx. 147,181 km² and approx. 30.4 million inhabitants. The main national language is Nepalese (AA 3.2017a). The form of government is a multi-party parliamentary democracy that emerged after the ten-year civil war (1996-2006). President Bidya Devi Bhandari has been the head of state since October 28, 2015 (AA 3.2017a; see AA 3.2017b). Nepal's parliament elected Sher Bahadur Deuba as the new Prime Minister of Nepal in June 2017. The 70-year-old became the country's head of government for the fourth time. Deuba's predecessor, Pushpa Kamal Dahal, had resigned after ten months in office almost two weeks earlier. Shifts like these are not uncommon in Nepalese politics. Since the end of the civil war in 2006, Nepal has been led by coalition governments that are often very fragmented, which has led to frequent changes in personnel, including at ministerial level (DS 6.6.2017).

Nepal was a Hindu kingdom for 240 years. In February 1996 the fight of the Maoist rebel movement under the leadership of the United Communist Party of Nepal - Maoist (UCPN-M) against the existing political system began with the aim of establishing a people's republic. The conflict between security forces and Maoists escalated nationwide after 1999 and claimed around 13,000 lives on both sides over the course of ten years. More than

1,200 people are still missing. The 12-point peace agreement was signed in 2006 (AA 3.2017b; see GIZ 6.2017).

The first constituent assembly elected at the beginning of April 2008 after the ten-year civil war declared Nepal a Federal Democratic Republic in its constituent session. The second constituent assembly was elected in a general election on November 19, 2013. According to the interim constitution of January 15, 2007, the President was head of state. The executive was with the Prime Minister and the government. The final form of government, government and electoral system as well as the future federal structure (seven provinces) are regulated by the new constitution, which was passed by the constituent assembly on September 16, 2015 and promulgated on September 20, 2015. In the previous elections on November 19, 2013, the former opposition parties, the Nepali Congress (NC) and the Communist Party of Nepal-United Marxist Leninist (CPN-UML), with 196 and 175 seats respectively, emerged as clear winners. The previous ruling party, the United Communist Party of Nepal - Maoist (UCPN-M), suffered heavy losses. It was once the strongest parliamentary group in the constituent assembly and was only able to win 80 seats. The royalist Rastriya Prajatantra Party - Nepal (RPP-N) achieved a respectable success with 24 seats in fourth place. A total of 100 mandates are held by small and very small parties. A total of 134 political parties or 6,000 candidates competed for 575 seats, which were awarded at a ratio of 40 to 56 according to majority and proportional representation in the 240 constituencies. There are also 26 members to be appointed by the President. Your mandate is five years (AA 3.2017b; see LIP 6.2017).

Swell:

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AA - Foreign Office (3.2017a): Nepal, http://www.auswaertiges-amt.de/DE/Aussenpolitik/Laender/Laenderinfos/01-Nodes_Uebersichtsseiten/Nepal_node.html, accessed on June 21, 2017

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AA - Foreign Office (3.2017b): Nepal - Innenpolitik, http://www.auswaertiges-amt.de/DE/Aussenpolitik/Laender/Laenderinfos/Nepal/innenpolitik_node.html, accessed on June 21, 2017

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DS - Der Standard (6.6.2017): Deuba becomes Prime Minister of Nepal for the fourth time,

https://derstandard.at/2000058826478/Deuba-wird-zum-vierten-Mal-Ministerpraesident-Nepals, accessed on June 21, 2017

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GIZ - German Society for International Cooperation (6/2017): Nepal - Geschichte und Staat, https://www.liportal.de/nepal/geschichte-staat/, accessed on 21 June 2017

Security situation

Nepal is in a phase of political transition. Since the constitution came into force on September 20, 2015, political tensions have increased because it is not accepted by all political parties and social groups. Between autumn 2015 and spring 2016, numerous protests and general strikes at national, regional and district level led to supply shortages lasting several months; especially the fuel supply was severely restricted. Renewed events of this kind are possible at any time. Attacks with small explosive devices have been carried out sporadically across the country, including Kathmandu. They caused isolated fatalities and injuries as well as property damage (EDA 1.6.2017).

Large-scale general strikes and violent protests cannot be ruled out. In the Terai and other areas, including Kathmandu, vehicles belonging to diplomats and international organizations have also been the target of attacks in the past. Due to the political instability and the unreliability of the legal system, there is an increasing propensity for violence and crime across the country. Criminal organizations and other groups blackmail national and international organizations, business people and individuals in many parts of the country and sometimes use force to enforce their claims (AA May 17, 2017).

Swell:

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AA - Federal Foreign Office (May 17, 2017): Nepal - Travel and safety information,

http://www.auswaertiges-amt.de/DE/Laenderinformationen/00-SiHi/Nodes/NepalSicherheit_node.html, accessed on June 21, 2017

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FDFA - Federal Department of Foreign Affairs (1.6.2017): Travel advice for Nepal, https://www.eda.admin.ch/content/eda/de/home/laender-reise-information/nepal/reisehinweise-nepal.html , Accessed on June 21, 2017

Terai regional problem area

Political and ethnic tensions are more pronounced in the Terai and the eastern hill areas than in other parts of the country. There is therefore a higher risk of local unrest, blockades and strikes (bandhs), especially in Siraha, Sarlahi, Dhanusha, Bara, Kailali, Dang and Kapilbastu, as well as in the eastern hill districts including Jhapa (EDA 1.6.2017; cf.AA 17.5 .2017; BMEIA 5.4.2017).

On August 8, 2015, four of the most important parties agreed to define Nepal in the new constitution as a federal republic and to divide it into seven federally administered states. Ethnic groups in the south and mid-west of Nepal protested against the new structure, which they believed denied them political representation. As a result, there were violent protests in the Terai region. The security forces used excessive, disproportionate or unnecessary force in multiple clashes with protesters. By October 2015, at least 47 civilians and ten police officers had been killed in these clashes (AI, February 24, 2016). From the end of August 2015 to spring 2016, unrest in the western Terai claimed several lives and injuries and a curfew was imposed (EDA 1.6.2017; see AA 17.5.2017; BMEIA 5.4.2017).

On March 6, 2017, violent clashes broke out between demonstrators from the United Democratic Madhesi Front (UDMF) and security forces in the Saptari district (eastern Terai), which left several people dead and injured (AA May 17, 2017).

Swell:

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AA - Federal Foreign Office (May 17, 2017): Nepal - Travel and safety information,

http://www.auswaertiges-amt.de/DE/Laenderinformationen/00-SiHi/Nodes/NepalSicherheit_node.html, accessed on June 21, 2017

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AI - Amnesty International (February 24, 2016): Amnesty International Report 2015/16 - The State of the World's Human Rights - Nepal, https://www.ecoi.net/local_link/319778/466805_de.html, accessed June 21, 2017

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BMEIA - Federal Ministry for Europe, Integration and Foreign Affairs (April 5, 2017): Travel information - Nepal, https://www.bmeia.gv.at/reise-urlaub/reiseinformation/land/nepal/, accessed June 21, 2017

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FDFA - Federal Department of Foreign Affairs (1.6.2017): Travel advice for Nepal, https://www.eda.admin.ch/content/eda/de/home/laender-reise-information/nepal/reisehinweise-nepal.html , Accessed on June 21, 2017

Legal protection / judicial system

The judiciary is formally independent and based on international standards of legal thought, but the judiciary is vulnerable to political pressure, bribery and threats. The judiciary has three levels: at the top is the Supreme Court, and below that are the appellate courts and the district courts. The Supreme Court is responsible for reviewing the constitutionality of laws. The authorities do not consistently implement court orders, including decisions of the Supreme Court. The respect for compliance with the rule of law and trust in the existing judicial organs have been eroded. Formal justice in Nepal is often hardly accessible, unreliable and too expensive for parties to the conflict. The widespread corruption of the police authorities and the state administration contributes to the fact that the population does not trust the existing judicial organs (GIZ 6.2017; see USDOS 3.3.2017).

There are delays in the implementation and funding of the two transitional mechanisms of the judiciary, the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP). Crimes committed during the time of conflict are insufficiently prosecuted (USDOS 03/03/2017).

On February 26, 2015, the Supreme Court of Justice repealed the recommendation of amnesties for crimes contrary to international law, enshrined in the Law Establishing a Truth and Reconciliation Commission. The law was passed by the Constituent Assembly in April 2014. The government rejected the Supreme Court ruling and filed a petition for review. The Truth and Reconciliation Commission and the Enforced Disappearance Commission, created by the 2014 Law, began their work despite the amnesty provisions, risking continued impunity for those responsible for crimes of international law committed during the armed conflict were (AI 24.2.2017).

Swell:

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AI - Amnesty International (February 24, 2016): Amnesty International Report 2015/16 - The State of the World's Human Rights - Nepal, https://www.ecoi.net/local_link/319778/466805_de.html, accessed June 21, 2017

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GIZ - German Society for International Cooperation (6/2017): Nepal - Geschichte und Staat, https://www.liportal.de/nepal/geschichte-staat/, accessed on 21 June 2017

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

Security agencies

The job of the Nepal Police (NP) is to enforce law and order, while the Armed Police Force (APF) is responsible for combating terrorism, ensuring security during rioting and public unrest, providing support in the event of natural disasters and protecting important infrastructure responsible is. NP and APF can issue search and arrest warrants without judicial or public prosecutor review. Both units, like the Army (Nepal Army - NA), have a human rights commission, but only the NP and NA commissions have independent investigative powers. All security forces receive human rights training. The NP notes that the Civil War era abuse allegations should be handled by the Truth and Reconciliation Commission (TRC). The NP Human Rights Commission reported three torture-related complaints between July 2015 and July 2016; and since August 2016 about two further complaints related to other cruel, inhuman or degrading treatment. Ten police officers were arrested for the three cases of torture. In the other two cases, two police officers were fined. However, the NGO Terai Human Rights Defenders Alliance (THRDA) and the Advocacy Forum (AF) independently report that since August 2016 they have filed several complaints of police violence in the district courts, all of which are still pending. AF also informs that it no longer sends complaints to the NP's Human Rights Commission, as it did not respond to any of the more than 100 complaints that AF has submitted since 2010. Police corruption, especially among underpaid lower-level police officers, and inadequate punishment for police abuse remain problems (USDOS 03/03/2017).

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Efforts to ensure the prosecution of human rights violations continues to be severely undermined by the failure of police to prepare First Information Reports, investigate or follow legal orders. This applies even in cases of alleged extrajudicial executions, human trafficking, gender-based violence as well as torture and other ill-treatment (AI 24.2.2017).

The allegedly inappropriate use of force by the security forces during the protests between August 2015 and February 2016 - especially in the Terai region - has been criticized and viewed as a significant human rights problem (USDOS 03/03/2017).

Swell:

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AI - Amnesty International (February 24, 2016): Amnesty International Report 2015/16 - The State of the World's Human Rights - Nepal, https://www.ecoi.net/local_link/319778/466805_de.html, accessed June 21, 2017

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

Torture and Inhuman Treatment

Although both the 2007 and 2015 Interim Constitutions address the issue, torture is not explicitly criminalized and the law does not provide clear guidelines on how to punish perpetrators. The Torture Compensation Act provides compensation for victims of torture; the victim must file a complaint and pursue the case in court. The NGO Terai Human Rights Defenders Alliance (THRDA) says that victims of torture are often reluctant to file an official complaint because of intimidation by security forces and fear of reprisals. Furthermore, according to THRDA, numerous cases of torture were rejected by the court due to a lack of credible evidence, particularly medical findings. In cases where the courts awarded the victim compensation or imposed disciplinary action against the police, the judgments were rarely implemented. In the rural parts of the Terai region, according to NGO information, no improvement in terms of police violence can be identified. Police in Kailali district are reportedly charged with arbitrary arrest, torture and other ill-treatment or forced confessions in connection with the killing of protesters and a child in Tikapur in August 2015 (USDOS 3/3/2017).

Cases of torture in order to obtain confessions and intimidate people persist, especially during pre-trial detention. In September 2016, the draft law on torture and cruel, inhuman or degrading treatment was submitted to parliament but was not passed by the end of the year.The draft law contains provisions that do not comply with international human rights norms (AI 22.2.2017).

Swell:

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AI - Amnesty International (February 22, 2017): Amnesty International Report 2016/17 - The State of the World's Human Rights - Nepal, http://www.ecoi.net/local_link/336579/479257_de.html, accessed June 21, 2017

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

corruption

Although the law provides penalties for government corruption, there are still reports that corrupt practices go with impunity. There have been numerous reports of corrupt actions by government officials, political parties and party organizations, i.e. at all levels of government. Corruption and impunity continue to be a problem within the police force, especially in the lower ranks (USDOS 3/3/2017).

Nepal is listed in Transparency's 2016 Corruption Perceptions Index

International with a rating of 29 (out of 100) (0 = highly

corrupt, 100 = very clean) in position 131 (of 176) (the higher, the

worse). In 2015, the country was ranked 130th (out of 167) with a rating of 27 (TI 2015/2016).

Swell:

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TI - Transparency International (2015): Corruption Perceptions Index, http://www.transparency.org/cpi2015, accessed on June 21, 2017

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TI - Transparency International (2016): Corruption Perceptions Index,

http://www.transparency.org/news/feature/corruption_perceptions_index_2016, accessed on June 21, 2017

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

Military service and recruiting

Voluntary military service is possible at the age of 18, there is no conscription (CIA May 30, 2017).

Swell:

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CIA - Central Intelligence Agency (May 30, 2017): The World Factbook

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Nepal,

https://www.cia.gov/library/publications/the-world-factbook/geos/np.html, accessed on June 21, 2017

General human rights situation

After the devastating earthquake on April 25, 2015, a new constitution was passed within a few months and came into force in September 2015. It exhibited numerous deficits in terms of the protection of human rights and envisaged a federal state structure that was rejected by the ethnic groups in the Terai region. The constitutional amendment followed violent clashes between protesters and police, particularly in the Terai areas, and resulted in more than 50 deaths from August 2015 to February 2016. In this context, the security forces were charged with serious human rights violations. The allegations of torture, unnecessary and excessive violence by the security officers were not investigated efficiently, however, and the marginalized groups are still dissatisfied with the constitutional amendment due to the lack of clauses against discrimination (AI February 22, 2017; see AI February 24, 2017). In August 2016, however, the government approved the creation of an independent legal commission to investigate human rights violations during the unrest over the constitutional amendment. But work has not started since September (USDOS 3/3/2017).

Disadvantaged groups were discriminated against due to the unequal distribution of disaster aid after the earthquake; There were delays in reconstruction in all affected areas. The tens of thousands of people affected by the earthquake continued to be denied the right to adequate housing and other human rights in 2016 (AI February 22, 2017; see AI February 24, 2017).

Other human rights problems include harassment of the media and the use of self-censorship to restrict the press. The government restricted freedom of assembly, particularly in the areas where the violent protests against the constitutional amendment took place. The freedoms of refugees, especially those of Tibetan origin, have been partially restricted. Citizenship laws and regulations are gender-discriminatory and thus contribute to statelessness. Early and forced marriage, as well as rape and domestic violence against women, including dowry murders, remain serious problems. Violence against children continues to be reported, including in orphanages; however, the incidents are rarely prosecuted. Trafficking in children and adults for sexual exploitation is common. Disabled people and some ethnic minorities suffer from discrimination (USDOS 03/03/2017). All caste discrimination is prohibited by the Nepalese constitution. Nevertheless, members of "untouchable castes" (Dalits) are often excluded (GIZ 6.2017). Harassment based on gender or belonging to a sexual minority remains widespread. Workers' rights are partially restricted. Little progress has been made in combating forced labor and debt bondage. Despite the ban, these are still in use. There has been moderate progress in the fight against child labor (USDOS 03/03/2017).

The human rights organizations in Nepal demand that the government clarify the fate of the people who disappeared, abducted and murdered in the civil war (GIZ 6/2017). The first initiatives have already been taken in this regard. The Commission of Investigation on Enforced Disappeared Persons (CIEDP) has drawn up a bill aimed at making enforced disappearances a criminal offense. In addition, the CIEDP would also like to investigate cases in which the victims of the forced disappearance were also tortured or were exposed to other crimes. However, the above-mentioned demands have been ignored by the government until now. The government formed the commission without passing any law criminalizing the forced disappearance of people, thereby ignoring Supreme Court directives to revise the Transitional Justice Act accordingly. She was therefore exposed to the accusation of civil society, human rights organizations and the international community of wanting to establish a toothless transitional justice system in which the serious crimes from the time of the conflict would no longer be prosecuted. According to the CIEDP, the government's measures only serve to delay the enactment of the necessary laws and the provision of the necessary resources (SAB 1.2016; see THT March 25, 2017). As of June 2017, the CIEDP had received 3,093 forced disappearance complaints. Another supervisory authority, the Truth and Reconciliation Commission (TRC) has already started its work despite a lack of resources; it is present in seven provinces and by June 2017 received 58,000 complaints of human rights violations, mostly from the time of the civil war. The chairman of the TRC reports that justice for the victims of extrajudicial killing, enforced disappearance, rape and torture cannot be guaranteed due to the inadequate legal situation (THT 8.7.2017).

Swell:

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AI - Amnesty International (February 22, 2017): Amnesty International Report 2016/17 - The State of the World's Human Rights - Nepal, http://www.ecoi.net/local_link/336579/479257_de.html, accessed June 21, 2017

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AI - Amnesty International (February 24, 2016): Amnesty International Report 2015/16 - The State of the World's Human Rights - Nepal, https://www.ecoi.net/local_link/319778/466805_de.html, accessed June 21, 2017

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GIZ - German Society for International Cooperation (6/2017): Nepal - Geschichte und Staat, https://www.liportal.de/nepal/geschichte-staat/, accessed on 21 June 2017

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SAB - South Asia Office (1.2016): Nepal: Commission of Inquiry into the Forced Disappearance of Persons, http://www.suedasienbuero.de/index.php/suedasien-bestellen/99-mektiven/nepal-mektiven/964-1-2016-untersuchungskommission- on-the-forced-disappearance-of-people, accessed June 21, 2017

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THT - The Himalaya Times (8.7.2017): Transnational justice bodies await revision of related acts, https://thehimalayantimes.com/kathmandu/transitional-justice-bodies-await-revision-related-acts/, accessed on June 21, 2017

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THT - The Himalaya Times (25.3.2017): CIEDP handicapped as legally there's very little it can do,

https://thehimalayantimes.com/nepal/commission-of-investigation-on-enforced-disappeared-persons-handicapped-legally/, accessed on June 21, 2017

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

Conditions of detention

According to human rights organizations, the conditions of detention do not meet international standards. According to official figures, there were 19,078 inmates distributed in 74 prisons in August 2016, which is below the official capacity of 10,978. Nonetheless, the NGO Terai Human Rights Defenders Alliance (THRDA) reports that overcrowding is a serious problem, but some improvement has been noted as new detention centers have opened. The Office of the Attorney General (OAG) also criticizes the lack of natural daylight, sanitary facilities, kitchen facilities and beds in some prisons. According to the Advocacy Forum (AF), some inmates did not have access to clean water and were given insufficient food. A lack of ventilation, heating and bedding was also found. Prisoners in custody are generally accommodated separately from convicted persons. Due to the lack of juvenile prisons, however, minors are sometimes also imprisoned in facilities for adults. Children are sometimes allowed to stay in prison with their imprisoned parents. Not all prisons have separate areas for women. The NGO Child Workers in Nepal reports that minors in adult prisons are often subjected to bullying by older inmates, badly treated by the police and often forced to clean toilets. Medical care in prisons is inadequate according to THRDA and AF (USDOS 3 March 2017; cf. FH 27 January 2016).

The report of the National Human Rights Commission (NHRC) gives prisoners the opportunity to lodge a complaint according to a prescribed procedure. However, according to the AF, this opportunity is rarely used by inmates for fear of threat and intimidation. The authorities react more quickly to complaints submitted by NGOs and international organizations. There is no ombudsman to investigate prisoners' complaints. There is no institutional mechanism for monitoring prisons. Some independent human rights monitors, e.g. the UN High Commissioner for Human Rights and the International Committee of the Red Cross (ICRC), are allowed to carry out monitoring visits to prisons. However, some NGOs were denied access or discussions with the inmates (USDOS 3/3/2017).

The government has prevented a thorough investigation or serious disciplinary action from being taken against police officers charged with brutality and torture. The UN Committee against Torture found that torture of suspects in pre-trial detention is widespread. Amnesty International reports on cases of torture of women and children (FH January 27, 2017).

According to AF's torture report, 17.2% of the 1,212 inmates interviewed in 2015 and 16.2% in 2014 were subjected to physical abuse. The same report points to a slight increase in the incidence of torture among inmates of indigenous groups. According to the Nepal Police (NP) Human Rights Commission, the majority of the alleged incidents have not been officially reported or formally investigated. By August 2016, the NP Human Rights Commission visited seven prisons in four districts and questioned the prisoners about their treatment in custody (USDOS 03/03/2017).

Swell:

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FH - Freedom House (January 27, 2017): Freedom in the World 2016 - Nepal, http://www.ecoi.net/local_link/327723/468405_de.html, accessed June 21, 2017

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

death penalty

Nepal is one of the states that have completely abolished the death penalty (AT 20.12.2016)

Swell:

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AT - Amnesty Death Penalty (December 20, 2017): States with and without the death penalty, http://www.amnesty-todesstrafe.de/index.php?id=42, accessed June 21, 2017

Freedom of movement

The law provides for freedom of movement and travel, but also the right to emigrate and return. Refugees are an exception; they often have to accept legally regulated restrictions with regard to their freedom of movement. However, the restrictions on refugee movements are not enforced uniformly. The government has not issued identification documents to Tibetan refugees for 20 years. There are reports of displaced persons from Tibet who are harassed or sent back by the police due to the lack of identity documents at checkpoints (USDOS 3/3/2017). To protect women from human trafficking or abuse, the government introduced a minimum age of 24 for women to travel abroad for employment. However, this regulation is perceived by NGOs and human rights activists as discriminatory and counterproductive, as it allows women to migrate informally across the Indian border (USDOS March 3, 2017; see AI February 22, 2017).

Swell:

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AI - Amnesty International (February 22, 2017): Amnesty International Report 2016/17 - The State of the World's Human Rights - Nepal, http://www.ecoi.net/local_link/336579/479257_de.html, accessed June 21, 2017

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

Basic service and economy

The ten-year civil war has significantly impaired the economic development of Nepal. With the peace process initiated in 2006, the political framework conditions for the economy have so far only improved slightly. Overall economic growth has ranged between 2 and 4 percent in real terms in recent years. The severe earthquakes of April / May 2015 and the domestic political crisis after the promulgation of the new constitution (September 20, 2015) led to a further slump in the economy, from which the country will only recover in the long term. With an annual per capita income of US $ 733.7 (GTAI, forecast for 2016), Nepal is the second poorest country in South Asia and remains one of the 20 poorest countries in the world. A quarter of the population lives below the national poverty line. In fact, the Nepalese economy is largely private, but it is also shaped by rigid welfare state elements and privileged state-owned companies. Pronounced bureaucracy and inadequate infrastructure have a negative impact on the investment climate and thus on economic development. Nepal is still an agricultural state largely characterized by subsistence farming. Agriculture employs more than half of the workforce and contributes more than a third to the gross domestic product (GDP). The share of the manufacturing sector in GDP, on the other hand, has steadily declined in recent years due to the difficult framework conditions for industrial companies. Tourism in the Kathmandu Valley, the Terai tropical rainforest and the Himalayas is an important source of foreign currency income. The service sector benefits greatly from increasing tourism. Around 90% of all businesses in the country are small businesses, which make an important contribution to employment, but only contribute 4% to GDP. Inflation has risen compared to the previous year and is currently around 8.5% (IMF, 2015). Foreign direct investment only accounts for a very small proportion of the total national budget. One third of the budget is financed by the donor community as part of development cooperation (AA 3.2017c; see GIZ 5.2017a).

There are no reliable surveys on unemployment. The official unemployment rate is relatively low, but underemployment is widespread (BTI 2016). Over the past few decades, the number of those who left the country due to political instability and severe economic crisis has increased exponentially. In addition to the traditional destination country India, with the oil boom and the economic rise of Asia, countries on the Persian Gulf and in Southeast Asia have become attractive destinations. It is estimated that four to five million Nepalese work abroad today, whose cash benefits to families in their home country make up 35% of the gross domestic product. With increasing emigration, the recruiting of workers has become a lucrative business. Over 800 so-called "manpower companies" recruit people willing to work in the villages through local agents and organize transport, exit documents and contracts with employers in the target countries. The vast majority of migrant workers are young men. The proportion of women has increased with the rising demand for domestic workers in the Gulf States over the past decade, but women only make up around 10% of the workforce abroad and are particularly at risk (GIZ 5.2017b; cf.GIZ 5.2017a, DR 25.4. 2017).

After the severe earthquake that hit Nepal on April 25, 2015 and wreaked havoc in the Kathmandu Valley and the mountain villages of the Himalayas, the country is only slowly recovering. At that time, almost 9,000 people were killed and 3.5 million were left homeless. Reconstruction is still going very slowly two years later. According to the reconstruction authorities, only around 4,000 people have received a second installment of the guaranteed funds so far, only 420 have received the full payment so far. Despite national and international support, the aid organizations complained about the lack of government guidelines for the necessary reconstruction (DR April 25, 2017; cf. GIZ 5.2017a).

Apart from family social networks, Nepal has no welfare system. In certain cases NGOs try to fill this gap, but their activities are very dependent on the respective location and on international donations, so the same services cannot be offered across the country. There are only a few private initiatives; public social services are backward and inadequate, although the situation has improved slightly in recent years (BTI 2016).

Swell:

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AA - Foreign Office (3.2017c): Nepal - Economy, http://www.auswaertiges-amt.de/DE/Aussenpolitik/Laender/Laenderinfos/Nepal/Wirtschaft_node.html, accessed on June 21, 2017

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AI - Amnesty International (February 22, 2017): Amnesty International Report 2016/17 - The State of the World's Human Rights - Nepal, http://www.ecoi.net/local_link/336579/479257_de.html, accessed June 21, 2017

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BTI - Bertelsmann Stiftung¿s Transformation Index (2016): Nepal Country Report,

http://www.bti-project.org/en/reports/country-reports/detail/itc/NPL/, accessed on June 21, 2017

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DR - Domradio (April 25, 2017): Two years after the earthquake in Nepal - Slow reconstruction,

https://www.domradio.de/themen/weltkirche/2017-04-25/zwei-jahre-nach-dem-erdbeben-nepal, accessed on June 21, 2017

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GIZ - German Society for International Cooperation (5.2017a): Nepal - Economy,

https://www.liportal.de/nepal/wirtschaft-entwicklung/, accessed on June 21, 2017

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GIZ - German Society for International Cooperation (5.2017b): Nepal - Society, https://www.liportal.de/nepal/gesellschaft/, accessed on June 21, 2017

Medical supplies

The health system in Nepal is the responsibility of the Ministry of Health, which is responsible for curative services, disease prevention, health promotion and the establishment of basic medical care. Additional health services are provided by international and national NGOs, private doctors, private nurses, and alternative health practitioners (e.g. Ayurveda health centers). Between 2015 and 2016 there were 104 public hospitals, 303 private hospitals, 202 primary health centers (PHCC), 3,803 health stations. Basic health care was also provided by 12,660 medical advice centers (PHCORC). In addition, 16,134 vaccinations were carried out as part of the Extended Immunization Program (EPI). These measures were supported with the help of 49,523 community volunteer medical helpers (FCHV) (DOHS 2.2017).

Despite the efforts of the Ministry of Health, medical care is inadequate in large parts of the country and often does not meet European standards. There is a sufficient basic supply in Kathmandu and the usual tourist destinations. In Kathmandu, medical care in individual specialist areas is also at a high level (AA May 17, 2017).

The health system is poorly developed. More than half of the population has no access to the most important medicines, with an average of only 21 doctors for every 100,000 inhabitants. Malnutrition and diseases of the gastrointestinal tract, parasitic diseases, tuberculosis, typhoid, malaria, rabies, eye and thyroid diseases are common. The number of people infected with HIV is 70,000. Child and maternal mortality rates are very high. The average life expectancy is around 70 years. Basic health care for the population is particularly poor in rural areas. In rural areas there is a shortage of doctors and medicines, and the distances to health stations are very long in remote regions. The population is therefore still highly dependent on traditional healing practices. Since the beginning of the 1990s, the government has tried to make a minimum of basic health services accessible to the entire population by setting up health stations (sub-health posts) in rural areas. The government's decision to invest 7.2% of the annual budget in the health sector is an important element of social security. Nevertheless, the health sector is facing ongoing challenges in order to improve the situation for the disadvantaged population groups: access barriers must be reduced, the quality of services must be increased and financed in a socially equitable manner, and the permanent availability of medicines must be ensured (GIZ 5.2017b).

There is no health insurance in Nepal. Medical treatment is free, but you have to procure all medication and materials required for treatment yourself, so that practically no medical care is possible for the poorest of the poor (DNH undated).

Swell:

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AA - Federal Foreign Office (May 17, 2017): Nepal - Travel and safety information,

http://www.auswaertiges-amt.de/DE/Laenderinformationen/00-SiHi/Nodes/NepalSicherheit_node.html, accessed on June 21, 2017

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DNH - German-Nepalese Aid Community (undated): Projects - Medical care,

http://www.dnh-stuttgart.org/index.php?id=medizinische-versorgung, accessed on June 21, 2017

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DOHS - Department of Health Services (2.2017): Annual Report - Department of Health Services 2015/2016, http://dohs.gov.np/wp-content/uploads/2017/06/DoHS_Annual_Report_2072_73.pdf, accessed on June 21, 2017

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GIZ - German Society for International Cooperation (5.2017b): Nepal - Society, https://www.liportal.de/nepal/gesellschaft/, accessed on June 21, 2017

return

The government allows citizens of Nepal to emigrate, and citizens can return to any region of Nepal at any time. The government generally works with UNHCR and other humanitarian organizations in providing protection and assistance to asylum seekers and refugees (USDOS 3/3/2017).

Swell:

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USDOS - US Department of State (3.3.2017): Country Report on Human Rights Practices 2016 - Nepal,

https://www.ecoi.net/local_link/337161/479925_de.html, accessed on June 21, 2017

2. Evidence assessment:

The findings result from the file contents of the administrative act, from which it can be inferred that the complainant had originally given a false identity using a forged driver's license, corrected it and then presented a birth certificate and a (further) driver's license. Furthermore, it can be inferred from the contents of the file that the complainant refused to present his passport. In addition, the findings on the person of the complainant, on his reasons for leaving the country and his circumstances in the federal territory result from his ultimately undoubted information in this regard.

The general situation results from the country information sheet of the state documentation. The report brings together a large number of different reports and therefore shows a balanced picture of the general situation in Nepal, which the complainant did not dispute. After the allegation in the course of the questioning at the Federal Office for Immigration and Asylum, the complainant waived the opportunity to comment on the state information sheet; he acknowledged this.

3. Legal assessment:

According to Section 6 BVwGG, the Federal Administrative Court decides through single judges, unless federal or state laws provide for a decision by senates. This means that the individual judge has jurisdiction.

The procedure of the administrative courts with the exception of the Federal Finance Court is governed by the VwGVG, Federal Law Gazette I 2013/33 i. d. F. BGBl. I 2013/122, regulated (§ 1 leg. Cit.). Pursuant to Section 58 (2) VwGVG, conflicting provisions that were already announced at the time this federal law came into force remain in force.

According to § 17 VwGVG, unless otherwise specified in this federal law, the AVG provisions apply to the procedure for complaints pursuant to Art. 130 Paragraph 1 B-VG, with the exception of §§ 1 to 5 and Part IV, the provisions the Federal Tax Code - BAO, Federal Law Gazette I 1961/194, the Agricultural Procedure Act - AgrVG, Federal Law Gazette I 1950/173, and the Service Law Procedure Act 1984 - DVG, Federal Law Gazette I 1984/29, and otherwise those procedural provisions in federal or state laws analogously which the authority has applied or should have applied in the proceedings preceding the proceedings before the administrative court.

§ 1 BFA-VG, Federal Law Gazette I 2012/87 i. d. F. BGBl. I 2013/144, stipulates that this federal law contains general procedural provisions that apply to all foreigners in proceedings before the Federal Office for Immigration and Asylum, before representative authorities or in a corresponding complaint procedure before the Federal Administrative Court. Further procedural provisions in the Asylum Act and the FPG remain unaffected.

Section 16 (6) and Section 18 (7) BFA-VG stipulate that sections 13 (2 to 5) and 22 VwGVG do not apply to preliminary complaint proceedings and complaint proceedings.

According to § 9 Abs. 2 FPG, BGBl. I Nr. 100/2005 i. d. G. F., and § 7 para. 1 line 1 BFA-VG, the Federal Administrative Court decides on complaints against decisions (notices) of the Federal Office for Immigration and Asylum. The Federal Administrative Court is therefore responsible for the decision.

To A)

Regarding ruling point I. of the contested decision:

Pursuant to Section 3 (1) AsylG 2005, an alien who has submitted an application for international protection in Austria, unless this application has already been rejected in accordance with Sections 4, 4a or 5, is granted the status of person entitled to asylum if it is credible that he is threatened with persecution in his country of origin within the meaning of Art. 1 Section A Z.

Refugees within the meaning of Art. 1 Section A Z. 2 GFK are those who are outside their home country and who are not, out of well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a certain social group or political convictions is in a position or unwilling in view of that fear to avail himself of the protection of that land; or who is stateless, is outside the country of his habitual residence as a result of the above circumstances and is unable or unwilling to return to this country in view of this fear.

The central element of the term refugee is the "well-founded fear of persecution". A fear can only be well founded if it is objectively understandable in the light of the asylum seeker's special situation, taking into account the circumstances in the persecuting state. It does not matter whether a certain person is actually afraid in a specific situation, but whether a person gifted with reason would be afraid in this situation (for reasons of convention). Persecution is to be understood as an unjustified intrusion of considerable intensity into the personal sphere of the individual that is to be protected. There is considerable intensity when the intervention is suitable to justify the unreasonableness of claiming the protection of the home country or the return to the country of the previous stay. The danger of persecution is closely related to well-founded fear and is the point of reference for well-founded fear. A risk of persecution is to be assumed if there is a significant likelihood of persecution, the remote possibility of persecution is not sufficient (cf. e.g. VwGH 22.12.1999, 99/01/0334; 21.12.2000, 2000/01/0131; January 25, 2001, 2001/20/0011).