Austria - Administrative Court (VwGH), 19 March 2013, 2011/21/0267

Country of Decision:
Country of Applicant:
Date of Decision:
19-03-2013
Citation:
VwGH 2011/21/0267
Court Name:
Administrative Court (VwGH)
National / Other Legislative Provisions:
Austria - Fremdenpolizeigesetz (Aliens Police Act) 2005 - § 52
Austria - Fremdenpolizeigesetz (Aliens Police Act) 2005 - § 9
Austria - Fremdenpolizeigesetz (Aliens Police Act) 2005 - § 53
Austria - Fremdenpolizeigesetz (Aliens Police Act) 2005 - § 61
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 67d
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Headnote: 

The Charter of Fundamental Rights of the European Union is also applicable to proceedings to issue a return decision and requires a hearing. With regard to an Applicant who is not represented by anyone legally qualified, such an obligation also exists in cases in which an application for an oral hearing was not expressly lodged. This applies in particular when considering questions concerning private and family life in Austria.

Facts: 

The Applicant travelled to Austria in 2002 and immediately made an application for asylum. A negative decision was eventually made on his application in October 2010. As a result, the Aliens’ Police Authority issued a decision for expulsion in November 2010. The unrepresented Applicant lodged an appeal against this decision.

This appeal was refused in September 2011 by the Independent Administrative Board without holding an oral hearing and the decision of the court of first instance was confirmed. The decision considered this a return decision which was not associated with an entry ban.

The Applicant lodged an appeal against this decision to the Administrative Court, in which amongst other things it was argued that an oral hearing should have been held.

Decision & Reasoning: 

The Charter of Fundamental Rights is also applicable in proceedings to issue a return decision, together with the provisions requiring an oral hearing. The Austrian legal system also envisages an entitlement to an oral hearing in § 9 of the Aliens’ Police Actand § 67d of the General Administrative Procedure Act.

Although it is possible to waive this entitlement, which is assumed for example if the Appellant does not lodge an application for a hearing; however, in the area of application of Art 47(2) of the Charter of Fundamental Rights, the existence of such a – conclusive – waiver can only be assumed for a party that is not represented by anyone legally qualified if they have been instructed on the opportunity granted to them to lodge an application for such a hearing or if there are indications that they should have known about this opportunity. In the case in point, it could however not be assumed that there would have been a waiver of the hearing.

The Administrative Court rejected the reasoning of the Independent Administrative Board that it was not necessary to hold an oral hearing  because the facts of the case relevant to a decision were unequivocally clear from the files, the proceedings concerned for the most part disputes as to the law, and because the files showed that a further oral examination was not likely to lead to a more extensive clarification of the case.. The matters concerning private and family ties in Austria which should have been examined in particular must not be reduced to a mere assessment of legal issues.

Outcome: 

The appeal was upheld.

Observations/Comments: 

In these proceedings, owing to the timing of the application, the old legislation of the Asylum Act (Asylum Act 1997) was applied. This did not envisage that the legality of expulsion within the meaning of Art. 8 ECHR could be considered at the same time as a rejection of the asylum application, but rather, in addition to the question of recognition of refugee status, only a consideration of non-refoulement was carried out.

According to this legislation, it was only after the final decision in the asylum proceedings that the Aliens’ Police Authority investigated whether an expulsion breached Art. 8 ECHR and any expulsion decision would be taken. The legal consequences of the expulsion decision for the most part correspond to those of a return decision.

Case Law Cited: 

Austria - Administrative Court (VwGH), 23 January 2013, 2010/15/0196

Austria - Administrative Court (VwGH), 24 January 2013, 2012/21/0224

Austria - Administrative Court (VwGH), 07 November 2012, 2012/18/0057

VwGH 20 März 2012, 2011/21/0298