Austria - Asylum Court, 29 November 2013, S25 438541-1/2013

Country of Decision:
Country of Applicant:
Date of Decision:
AsylGH 29.11.2013,
Additional Citation:
S25 438541-1/2013
Court Name:
National / Other Legislative Provisions:
Austria - Bundesgesetz über die Gewährung von Asyl 2005 (Federal law regarding granting of asylum;
as amended): § 4
§ 5
§ 10
§ 18
§ 29
§ 30
§ 37
§ 41
§ 60
§ 61; § 66
Austria - Bundesgesetz über den Asylgerichtshof 2008 (Federal law for the Asylum Court;
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991
Austria - Bundesgesetz über die Zustellung behördlicher Dokumente 1982 (ZustG BGBl Nr 200/1982 idgF)
Austria - Gesetz über die Vorbeugung und Bekämpfung der Ansteckungen und der ansteckenden Krankheiten bei Menschen vom 20. Dezember 2008
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The Asylum Court upheld the Federal Asylum Agency’s rejection of the mother and son’s application on the basis that Poland was responsible for the application under the Dublin II Regulation. The Court held that Austria was not obliged to apply Article 3(2) Dublin II Regulation due to a threatened violation of Article 3 or Article 8 ECHR. 


The applicants were mother and son. They lodged an application for international protection with the Federal Asylum Agency on 15 August 2013. In August 2013, the applicants travelled via Belarus to Poland where identification procedures were undertaken. The applicants said that the destination of their journey had always been Austria. The flight to Austria was a consequence of both applicants' illness as well as harassment from Chechen soldiers in Russia.

The Federal Asylum Agency rejected the applications for international protection as inadmissible on the basis that Poland was responsible for their asylum claims pursuant to Article 16(1)(c) of the Regulation (EC) no. 343/2003 (“the Dublin II Regulation”). The applicants were removed to Poland.

The Federal Asylum Agency determined that they neither suffered from physical or contagious illness, nor had severe mental health problems which would have led to an unreasonable deterioration of the physical conditions as a consequence of removal. Also the Agency ruled that the transfer of the applicants to Poland would not violate Article 8 ECHR. There was no danger of persecution or mistreatment nor was medical treatment in Poland insufficient. Furthermore, Poland had itself declared responsible pursuant to Article 16(1)(c) Dublin II-Regulation. The Federal Asylum Agency was also of the view that there existed no reasons to declare Austria competent for examining the application pursuant to Article 3(2) Dublin II-Regulation. 

Decision & Reasoning: 

The Asylum Court upheld the Agency’s decision, and commented on two issues in particular: 1. The question regarding the competence/responsibility for examining applications for international protection; 2. The question whether the removal was admissible.

The Court noted that, pursuant to national law, an application which has not been finally decided is to be rejected as inadmissible if another state is responsible for the examining of applications for asylum under the Dublin II Regulation. The asylum authority must determine the Member State responsibleand connect the dismissal of the application with an expulsion.

The Court ruled that Poland was effectively responsible for examining the application because the applicant underwent identification procedures in Poland and lodged an application for asylum there (Article 10(1) Dublin II Regulation). There was also no evidence that the applicants had left the territories of Member States in the meantime.

It was also lawful that the Federal Asylum Agency did not declare itself responsible pursuant to Article 3(2) Dublin II Regulation. It was not required to imperatively declare itself competent in order to avoid a breach of the ECHR.

On the basis of the jurisprudence of the Austrian Administrative Court and the European Court for Human Rights, the Court noted that Member States need not to verify whether another Member State was basically safe, because such an assumption is made by adoption of the Dublin II Regulation. Yet, a an assessment of the risks to fundamental rights of a transfer is required in individual cases The Asylum Court named Greece as an example for which an individual check is required due to several decisions and regular reporting on the Greek asylum system. Although there was no such evidence reported for Poland, the Asylum Court nevertheless checked possible violations of Article 3 and 8 ECHR of Poland.

The Court noted that it is to be assumed that the applicant will find sufficient protection in the state competent, if no special (exceptional) reasons existed which would provide reasons for a real threat of lack of safety. These reasons must be either shown credibly by the applicants or be evident to the Federal Asylum Agency or the Asylum Court. Asylum authorities are obliged to make further necessary official checks in order to assess the possibilities of a "real risk". Concrete arguments against the Polish asylum system were not made in this case. The applicants’ criticisms made on the situation of third country nationals in Poland were not sufficient to systematically demonstrate inadequate or generally inhuman conditions.

that the Court also considered the rule that a transfer would be inadmissible if it would lead to a deterioration of the course of disease or the impossibility of a cure, and thereby violate Article 3 ECHR. Background information regarding possible treatment in the state of destination and an enhanced check of fitness to travel are required. The Court found that the illnesses of the applicants were also treatable in Poland. The medical attendance in Poland did not considerably differ from that in Austria.

In addition, Article 8 ECHR was not violated, because the applicants had only stayed in Austria for almost four months and had no family members or other relevant persons in Austria. In case of such a short stay period, it was to be assumed that there were no strong private ties in Austria which would constitute a relevant private life within the meaning of Article 8 ECHR.

As a result, the Asylum Court confirmed the view of the Federal Asylum Agency that there was no reason to oblige Austria to imperatively apply Article 3(2) Dublin II Regulation due to a threatened violation of Article 3 or 8 ECHR. 


The applications were rejected. The decisions of the Federal Asylum Agency were confirmed, and the removal was found admissible. 


The Asylum Court deals in detail with the responsibility for the examination of the application for international protection as well as with the requirements for assuming responsibility pursuant to Article 3(2) Dublin II Regulation. 

This summary was provided courtesy of DLA Piper.

Other sources cited: 

Filzwieser, Subjektiver Rechtsschutz und Vollziehung der Dublin II-VO - Gemeinschaftsrecht und Menschenrechte, migraLex, 1/2007

Premiszl, Schutz vor Abschiebung und Traumatisierten in "Dublin-Verfahren" migraLex 2/2008

Filzwieser/Sprung, Dublin II-Verordnung. Das Europäische Asylzuständigkeitssystem. Berliner Wissenschafts-Verlag, Neuer Wissenschaftlicher Verlag, Berlin, Wien, Graz 2010

Case Law Cited: 

Austria - Administrative Court (VwGH), 31 May 2005, 2005/20/0025

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

VwGH 27 September 2005, 2005/01/0313

ECtHR - Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v. Ireland [GC], Application No. 45036/98

ECtHR - Said v Netherlands, Application No. 2345/02

Austria - Administrative Court (VwGH), 26 November 1999, 96/21/0499

Austria - Administrative Court (VwGH), 09 May 2003, 98/18/0317

Austria - Administrative Court (VwGH), 16 July 2003, 2003/01/0059

Austria - Administrative Court (VwGH), 23 January 2007, 2006/01/0949

Austria - Administrative Court (VwGH), 17 February 1998, 96/18/0379

Austria - Administrative Court (VwGH), 31 March 2005, 2002/20/0582

Austria - Administrative Court (VwGH), 25 April 2006, 2006/19/0673

ECtHR - Hukic v Sweden, Application No 17416/05 - Resource

Austria - Administrative Court (VwGH) 16 October 1990, 90/05/0008

Austria - Administrative Court (VwGH) 24 February 1993, 92/03/0011

Austria - Administrative Court (VwGH) 28 June 1994, 94/05/0004

Austria - Administrative Court (VwGH) 26 June 1997, 95/18/1293

Austria - Administrative Court (VwGH) 17 July 1997, 97/18/0336

Austria - Administrative Court (VwGH) 1 October 1997, 96/09/0007

Austria - Administrative Court (VwGH) 16 June 2004, 2001/08/0112

Austria - Administrative Court (VwGH) 19 February 2004, 99/20/0573

Austria - Administrative Court (VwGH) 23 November 2006, 2005/20/0444

Austria - Constitutional Court, 6 March 2008, B 2400/07

ECtHR - Ndangoya v Sweden, Application No.17868/03