Austria – Supreme Administrative Court, 30 August 2017, Ra 2016/18/0324

Facts:

Two brothers of Iraqi nationality lodged an application for international protection in Austria on February 15, 2016. The younger brother is a minor. On February 24 2016, the older brother was entrusted with custody for his younger brother by the district administration of Baden, which recommended an application for custody at the district court.  A legal representative was not provided to the younger brother.

Both asylum applications were declined on August 24, 2016 by the Federal Office for Immigration and Asylum (Federal Office), reasoning that Croatia would be responsible to review their cases. The older brother received both decisions as he was considered the legal representative of the younger one. He then lodged an appeal against the decision for and in the name of both appellants at the Federal Administrative Court (FAC). The Court held on September 23, 2016 that the appeal was unfounded. The older brother has been served with the decisions concerning both appeals on October 3, 2016 and the Federal Office on September 28, 2016.

Thus, the appellants filed an appeal to the Supreme Administrative Court (SAC) and to the Constitutional Court. The decision of the FAC concerning the older brother was then annulled by the Constitutional Court on June 9, 2017, referring to the right for respect of private and family life. The appeal concerning the younger brother was dismissed. The Court reasoned that he had not been lawfully served with the decision, as custody was conferred to the older brother by judicial decision only on March 10, 2017. 

Decision & reasoning:

As the Constitutional Court annulled the decision by the FAC concerning the older brother, the SAC dismissed the case as unfounded. On the contrary, the appeal of the younger brother was successful.

In this regard, the Court first examines the lawfulness of the transfer of custody to the older brother. The informal letter by the district administration Baden is thus not seen as a legally valid transfer of custody. Therefore, the younger brother must have been considered as underage.

Austrian law stipulates that in case of impossible representation by parents or other persons entitled with custody, unaccompanied minors must be provided with a legal representative. This has not been the case.

Thus, the older brother had no legal power to represent his younger brother until March 10, 2017. Therefore, the younger brother has not been lawfully served with the decision concerning his appeal which could therefore not have become legally effective. In this case, the FAC was not authorized to judge on the merits of the case and should have dismissed the appeal as inadmissible. As the Federal Office had, however, been served with the decision, it could be appealed against at the SAC.

In conclusion, the SAC ruled that the judgment under appeal is to be set aside. On the contrary, the SAC did not decide on the matter of the asylum application.

Outcome:

Appeal granted.

Observations/comments:

This case summary was written by Teresa Fachinger, student at Cologne University.

Other sources:

Domestic Case Law Cited

Austria - Zl. E 2923-2924/2016-20 (eigener Fall vor VfGH)

Austria - Ra 2016/19/0007 (VwGH)

Austria - 2007/08/0329 (VwGH)

Austria - 2008/17/0186 (VwGH)

Austria - 2003/05/0194 (VwGH)

Austria - Ra 2014/18/0139 (VwGH)