Austria - Federal Administrative Court, 19 October 2017, I403 2173192-1
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The competent authority has to respect as legally binding a court order that determines a certain date of birth and thereby the minority of an applicant. This is also the case if the applicant himself indicates another (earlier) date of birth.
The personal interview of a minor without his legal representative constitutes a significant procedural violation. The facts are presumed to not be ascertained. The competent authority has to ascertain the facts and circumstances once again.
Facts:
The applicant has Moroccan citizenship. He indicated his birth date in the year of 1999. His minority was confirmed in an expert report. In a court order the district court presumed his date of birth to be in 2000 and entrusted the municipal authority of Vienna with legal representation.
The 14th of September 2017 the applicant was remanded in custody. The 18th of September 2017 the Federal Agency of Migration and Refugees (BFA) stated in an e-mail to the municipal authority of Vienna, that the presence of the legal representative during the personal interview would be possible, but that the authority is presuming the majority of the applicant.
The 25th of September 2017 the applicant had the personal interview without the presence of the legal representative. The applicant stated his date of birth was the (earlier) date of birth in the year 1999. The same day the BFA issued a decision, in which it rejected the application for asylum and for subsidiary protection. The BFA issued a return decision and permitted the deportation to Morocco. The decision was delivered to the applicant and his legal representative.
The legal representative submitted an appeal against this decision requesting the reassessment by the previous instance. In the appeal the legal representative claims the violation of § 19 Abs. 5 AsylG 2005. This law imposes the presence of the legal representative during the personal interview of a minor applicant. In the appeal, the legal representative requested the reassessment by the first instance because otherwise there would be an abridgement of the appeal stages to the disadvantage of the applicant.
Decision & reasoning:
First of all, the Federal Administrative Court states that the BFA disregarded the court order determining the applicant's minority. This kind of court order is legally binding. According to the court order the applicant is presumed to be a minor, even though the applicant declared another date of birth.
The Federal Administrative Court alleges that the personal interview was held without the legal representative. According to § 19 Abs. 5 AsylG 2005 minor applicants can only be interviewed in the presence of the legal representative. The e-mail the BFA sent to the legal representative the 18th of September 2017 cannot remedy this procedural violation.
Because of this substantial procedural violation the applicant's statements in the personal interview cannot be used. The Federal Administrative Court states that the facts were not ascertained.
Furthermore, the Federal Administrative Court determines if it has an obligation to take a decision on the merits imposed by § 28 Absatz 3 VwGVG. The court decides that the investigation on the facts is insufficient. Nevertheless, it states that the investigation proceedings and the investigation of facts carried out by the Federal Administrative Court would not be according to the law. This would abbreviate the appeal stages.
Outcome:
Appeal granted - Reexamination by the first instance authorities
Cited National Legislation:
| Cited National Legislation |
| Austria - § 19 Abs. 5 AsylG 2005 |
| Austria - § 28 Absatz 3 VwGVG |
| Austria - § 25a Abs. 1 VwGG |
| Austria - Art. 133 Abs. 4 B-VG |
Cited Cases:
| Cited Cases |
| Austria - Constitutional Court, 7 March 2012, U1558/11 |
Other sources: