Austria - Administrative Court of the Province of Styria, 9 September 2016, LVwG 20.3-912/2016

Country of Decision:
Country of Applicant:
Date of Decision:
09-09-2016
Citation:
LVwG 20.3-912/2016
Court Name:
Administrative Court of the Province of Styria
National / Other Legislative Provisions:
Austria - Art. 130 para 1 Z 2 Federal Constitutional Law
Austria - s. 7
9
28 para 6 and 35 Code on Administrative Procedure
Austria - s. 1 Compensation of Expenditure Order
Austria - s. 41 Aliens’ Police Act 2005 (FPG) in the form of Austrian Civil Code l. I No 70/2015
Austria - s. 12 Asylum Law in the form of Austrian Civil Code l. II No 202/2015
Austria - s. 88 Federal Security Police Act
Austria - s. 25a Higher Administrative Court Act
Austria - s. 10 para 1 Guidelines Order
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Headnote: 

Asylum seekers cannot be rejected at the border crossing without having the possibility to state reasons for obtaining international protection as well as a precise indication of reasons for the refusal of entry on the entry form. An assessment of the submitted reasons for asylum cannot only depend on an assessment by an interpreter, but must be decided through the responsible authority or court.

Facts: 

During the proceedings, the claimant of Syrian nationality and the defendant gave contradictory information, based on which the court assumes the following:

The claimant fled from Syria to Slovenia through the Balkan route. Upon his attempt to enter Austria at the checkpoint “Spielfeld”, the claimant identified himself by passport at the post responsible for questioning. Having indicated his intention to continue his journey to Sweden in order to seek asylum there, the claimant was informed by an interpreter that a transit to Sweden would not be possible. Instead, an application for asylum was possible in Germany or Austria. Following this, the claimant indicated that he would like to seek asylum in Austria. According to the claimant’s statement to the court during the proceedings, a document the claimant intended to show evidencing the destruction of his house in Syria was not accepted and then ripped apart by border control officers. On the entry form, it was noted by handwriting: “no war in the village. Had problems with the police in his home village. Contradictory statements”. The travel document was handed back to the claimant without an entry stamp. He was refused entry and consequently sought asylum in Slovenia.

Decision & Reasoning: 

As a preliminary point, the court criticised the missing remark on the entry form as to the interpreter’s identity, having regard to the duty of documentation within the meaning of Guidelines Order (Richtlinienverordnung) s10 para1.

1. The rejection (refoulement) of the claimant at the checkpoint was unlawful. Whilst he expressed his intention to seek asylum in Austria, during the questioning he was denied the possibility to state reasons for his international protection in Austria as per s41 para3 of the Aliens’ Police Act (Fremdenpolizeigesetz). By reason of the prejudicial assessment through the interpreter or rather border control authorities, the claimant could not submit an application for asylum.


In addition, it was accepted that the employment of interpreters from private firms, as in this case, is permitted during the questioning as to the admissibility of entry as per s41 para3. However, there is a duty to introduce interpreters to the fundamentals of their work whilst equally officials are to be introduced to their work with interpreters. Furthermore, Art.13 para2 of the Schengen Borders Code requires the precise indication of reasons for the refusal of entry. The transit to Sweden, whilst stated as the reason for refusal by the border control authorities before court, was not mentioned on the entry form. What is more, an assessment of the submitted reasons for asylum cannot only depend on an assessment by an interpreter as was the case here, but must be decided through the responsible authority or court. As per s12 para1 Asylum Law (Asylgesetz), the claimant is entitled to a factual protection against deportation (right to remain pending decision).

2. The request to find the destruction of the claimant’s documents through bodies of public security services as unlawful is to be rejected. This follows from the proceedings, finding that a document was never handed over.

Outcome: 

1. The rejection of the claimant through bodies of the Steiermark police was unlawful.

2. The complaint that documents of the claimant were destroyed during the border control by bodies of the public security services is rejected.

Observations/Comments: 

The decision concerns one of twelve similar cases  of complaints (inter alia LVwG 20.3-918/2016 and 21.3-919/2016; LVwG 20.3-873/2016 and LVwG 21.3-874/2016) in which the refusal of Asylum seekers was declared unlawful. Petra Leschanz of the initiative Border Crossing Spielfeld emphasises the “defective basic concept of border management”. She doubts whether following the decision and in light of the possible entry into force of the Emergency Asylum Order, untrained officers could be expected to take decisions concerning Asylum law. (Full comment in German under: http://steiermark.orf.at/news/stories/2795696/)

This case summary was written by Christian Freuling, Graduate Diploma in Law student at BPP Law School.

Other sources cited: 

Art. 13 of regulation 562/2005 of the European Parliament and of the Council of 15 March 2006 regarding the Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)