Austria – Supreme Administrative Court, 21 April 2015, Ra 2014/01/0154

Facts:

The appellant, a Russian national of Chechen ethnicity, lodged an application for international protection at the beginning of 2013.

The Federal Office for Immigration and Asylum rejected his application with regard to the recognition as a refugee as well as a subsidiary protection beneficiary. At the same time, the deportation of the application to Russia was declared as inadmissible.

The complainant lodged an appeal against this decision with the Federal Administrative Court which the court found to be inadmissible. On the basis of the available information, it had to be regarded as almost certain that the appellant participated in crimes against peace within the meaning if Art. 1 F of the 1951 Refugee Convention.

The appellant challenged the correctness of this information. However, the Federal Administrative Court did not regard this line of argument as convincing since it could not be assumed that only the information in favour of the applicant was correct. Furthermore, the complaint did not reveal any facts which could question the decision of the Federal Office.

The complainant filed an appeal with the Supreme Administrative Court against this decision.  

Decision & reasoning:

The Supreme Administrative Court found the appeal to be admissible because the judgment of the Federal Administrative Court deferred from the jurisprudence of the Supreme Administrative Court. The decision did not contain any precise establishment of the facts with regards to the alleged criminal actions of the appellant (cf. Supreme Administrative Court, 11 November 2008,
2006/19/0352) and  it also did not tackle the substance of the appeal (cf. Supreme Administrative Court, 28 May 2014,
Ra 2014/20/0017 and 0018).

The appeal was also held to be well-founded.
According to the jurisprudence of the Supreme Administrative Court an oral hearing can only be waived if the complaint does not claim any facts relevant to the assessment which are in contradiction or go beyond the result of the administrative investigation procedures. In this context, only an unsubstantiated denial of the facts established by the competent authority or a submission in violation of the interdiction of novation (§20 BFA-VG) can be left out of consideration.
On the contrary, it constitutes a substantiated denial of the consideration of evidence by the relevant authority if a complaint questions the credibility of different sources which formed the basis for such consideration. The lack of an oral proceeding in such cases leads to a violation of the obligation to hold a trial.

With regards to a possible exclusion from asylum its severe consequences for the individual do not only require that the exclusion clauses of the 1951 Refugee Convention are interpreted narrowly but also that the facts are sufficiently established in order to determine which conduct the exclusion is based on.  Furthermore the reprehensibility of the offense of which the asylum seeker is accused of has to be weighed against his need of protection, namely the degree of the persecution feared. This also requires a comprehensive establishment of the facts.

Considerations of the competent authority, which are limited to the assumption that the individual in question has participated in hostilities and has caused the death of opposing soldiers and civilians without further clarifying when,  on which occasion and under which circumstances such participation has taken place, do not meet the requirements for determining whether the criteria for exclusion are fulfilled.

This applies in particular against the background of Art. 12 (2) lit. b and c of the Qualification Directive 2011/95/EU and the relevant jurisprudence of the Court of Justice in this regard (C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D).
According to this jurisprudence, the examination of the exclusion clauses of Art. 12(2) of the Qualification Directive requires an “individual assessment of the specific factual circumstances” as well as “that a part of the responsibility for the actions of the terrorist organisation during the time of the individual’s membership can be attributed to it”.

The assessment of the Federal Administrative Court does not meet these requirements and is thus not sufficient to determine whether the criteria for the exclusion of the appellant from asylum are fulfilled. 

Outcome:

The extraordinary appeal is admissible and well-founded. The judgement under appeal is set aside due to a violation of rules of procedure.

Observations/comments:

The decision sets aside the judgement of the Federal Administrative Court of 29 August 2014, ZI. W216 1439086-1/1E.

This case summary was written by Ann-Christin Bölter, LLM student in Immigration Law at Queen Mary University, London.

The summary was proof read by Ana-Maria Bucataru, an LLM student in Immigration Law at Queen Mary University, London.

Other sources:

UN High Commissioner for Refugees (UNHCR), ‘Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ (April 2001) accessed 23 May 2016 [38].

Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism [2001] OJ L 344/ 93.