Austria – Federal Administrative Court, 24. August 2015, W149 1433213-1/29E

Country of Decision:
Country of Applicant:
Date of Decision:
24-08-2015
Citation:
W149 1433213-1/29E
Additional Citation:
ECLI:AT:BVWG:2015: W149.1433213.1.00 (European Case Law Identifier)
Court Name:
Federal Administrative Court
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 2
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > ECHR (Sixth Protocol)
Council of Europe Instruments > ECHR (Thirteenth Protocol)
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 20
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 75 (20)
Austria - Asylgesetz (Asylum Act) 2005 - § 10 (1)
Austria - Asylgesetz (Asylum Act) 2005 - § 2 (1) Section 13
Austria - Asylgesetz (Asylum Act) 2005 - § 75 (19)
Austria – BVwGG (Federal administrative court Act Amendment of administrative litigation) - § 6
Austria – VwGVG (Federal Act on Procedures at Administrative Courts) - § 17
Austria- B-VG (Federal Constitutional Law) – Art. 130 (1) Section 1
Austria – BFA-VG (Federal Act on the general rules for procedures at the federal office for immigration and asylum) -§ 49 (9)
Austria – AVG (General Administrative Procedures Act) - § 13a
Austria – AsylG 2005 (Federal Act concerning the Granting of Asylum) - § 75 (1) sentence 1
Austria – AsylG 2005 (Federal Act concerning the Granting of Asylum) - § 22 (2)
Austria – AsylG 2005 (Federal Act concerning the Granting of Asylum) - § 11 (1)
Austria– VwGG (Supreme Administrative Court Act) - §25a
Austria- B-VG (Federal Constitutional Law) – 133 (4)
Austria – VwGVG (Federal Act on Procedures at Administrative Courts) - § 24 (1)
Austria – VwGVG (Federal Act on Procedures at Administrative Courts) - § 24 (3)
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Headnote: 

If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court. 

Facts: 

The appellant lodged an application for international protection with the competent border authority at the airport in Vienna in 2011.

During the following administrative procedures the applicant was repeatedly questioned in writing and produced several pieces of evidence regarding his state of health, the situation in Somalia as well as his knowledge of German. Furthermore, he was invited on several occasions to comment on the country of origin information regarding Somalia, which formed the basis of the later decision of the Federal Office of Asylum, as well as on specific issues, like the accessibility of treatment for diabetes mellitus in Somalia. 

The Federal Office of Asylum rejected his application with regard to  granting  refugee as well as subsidiary protection status and ordered his expulsion to Somalia.  

The applicant appealed this decision. He claimed that the consideration of evidence by the Federal Office was incorrect and inadequate. In the oral hearing he also claimed, that his assigned legal adviser neither advised him on how to formulate his complaint  nor did he accompany him to the oral hearing. 

Decision & Reasoning: 

Firstly, the Federal Administrative Court held that in the present case an oral hearing could not be waived according to § 21 (7) of the Federal Act on the general rules for procedures at the Federal Office for Immigration and Asylum, solely because the appellant provided substantiated reasons that call into question the consideration of evidence in the administrative proceedings.  Therefore the facts could not be regarded as “well established on basis of the records in combination with the complaint”. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

Furthermore, the initial consideration of some issues (e.g. internal protection alternative, ability of the state to protect) requires that the right to be heard is granted. Finally, the oral hearing  may not be  replaced  by giving the applicant the possibility to comment in writing on country of origin information during the complaint procedure.

Concerning the  submission of the appellant which underlined that the legal representative was absent, the Court did regard it as credible, in spite of an explicit request by the appellant. However, in the opinion of the court this did not constitute a grave violation of procedural rules. On the one hand, not accompanying the appellant during the judicial proceedings could not be regarded as a violation of the procedural rules by the opposing administrative authority. On the other hand, § 52 (2) of the Federal Act on the general rules for procedures at the Federal Office for Immigration and Asylum does not prescribe any legal consequences for such failure to act, in particular not with regards to oral hearings or judicial proceedings as such. In this context, the only legal consequence that is provided for can be found in § 48(9) of said law which lays down that in case of a repeated and insistent breach of duties by a single legal entity the federal minister can annul its authorisation. Moreover, such legal consequence can also not be derived from European Union law since the national provision goes beyond what is required by Art. 20 (1) of Directive 2013/32/EU.

For the rest, the court found that on the basis of the facts that have been established in the judicial proceedings there was no well-founded fear of persecution within the meaning of Art. 1 A of the 1951 Refugee Convention. In the same vein, there was also no real risk of a violation of Art. 2 ECHR or Art. 3 ECHR or Protocol No. 6 or Protocol No. 13 to the Convention or a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict that would warrant the granting of subsidiary protection. Therefore, the appeal was unfounded in this regard.


The Federal Administrative Court based these findings on a detailed analysis of the submission of the appellant in the oral hearing and the country of origin information with regard to the general situation in Somalia, the security and human rights situation, (ethnical) minority and clan structures, freedom of movement, internally displaced persons, basic supply and economy, medical care and the possibility of return as well as the medical reports and the further evidence presented. 
Additionally, the Court held that the return of the appellant would not be permanently inadmissible on the basis of Art. 8 ECHR since he did not have a family life in Austria and any further interference with his right to private life would be justified by a weighing of the interests concerned in accordance with Art 8(2) ECHR. Therefore, the decision on the lawfulness of a return decision was referred back to the Foreign Office for Asylum.

Finally, the court declared that an ordinary appeal against its decision would be admissible in accordance with Art. 133 (4) of the Federal Constitutional Law. This is due to the fact that the interpretation of the newly adopted § 52 (2) of the Federal Act on the general rules for procedures at the federal office for immigration and asylum with regard to the legal consequences of the unfounded absence of a legal representative in the oral hearing of the Federal Administrative Court, in spite of an explicit request by the appellant, in proceedings concerning international protection was still unclear. Due to the lack of explicitly specified legal consequences it could not be excluded that such breach could, contrary to the view of the deciding chamber, have legal implications for the proceedings. Since this question involved a legal issue of fundamental importance for all proceedings concerning international protection further clarification from the Supreme Administrative Court was needed.  

Outcome: 

The appeal was dismissed as unfounded with regards to the non-recognition as a refugee and as a subsidiary protection beneficiary.

Concerning the lawfulness of a return decision the case was referred back to the Federal Office of Asylum.

An ordinary appeal against the decision was declared as admissible. 

Observations/Comments: 

This case summary was written by Ann-Christin Bölter, LLM student in Immigration Law at Queen Mary University, London.

The summary was proof read by Ana-Maria Bucataru, an LLM student in Immigration Law at Queen Mary University, London.

 
Other sources cited: 

Foreign Office  (3.2014b): Somalia – Foreign Policy (March 2014)

Foreign Office  (3.2014c): Somalia – Home Affairs (March 2014)

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