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

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.