Austria - Administrative Court (VwGH), 16 May 2013, 2012/21/0072

Facts:

The Applicant travelled to Austria in 2006 together with his wife and they applied for asylum. Their son was born in 2009. In December 2011, the asylum applications for all the family members were refused, an expulsion decision to Belarus was issued, a 14-day deadline for departure was granted and information was provided on the option of applying for an extension of this deadline.

In January 2012, the family applied for an extension on the deadline for departure within the period prescribed until 31.05.2012. This application was submitted on the grounds that following six years of absence from Belarus, loss of their social network there, lack of available accommodation, the harsh winter in Belarus and the lack of travel documents for their son living in Austria, a departure was not reasonable at that time.

The application was first refused by the competent district authority. The grounds given were that the actual willingness for a voluntary departure was a prerequisite for granting a delay; however the Applicants had stated that they were applying for leave to remain. Merely very cold winters and an absence of many years from the home country during the asylum proceedings were not “special circumstances” within the meaning of the law, which would require an extension of the deadline.

The appeals lodged against these judgments were upheld by the Tirol Independent Administrative Board and the deadline for voluntary departure was extended until 31.05.2013. Essentially, it was held that the grounds pleaded by the Applicant were quite substantial, as the intended application for leave to remain did not necessarily lead to the conclusion that no voluntary departure was intended. 

The Federal Ministry for Internal Affairs lodged an official appeal against these judgments.

Decision & reasoning:

In principle it was accepted that an extension of the deadline for a voluntary departure requires that the person affected actually intends to depart voluntarily at that time. The Administrative Court did not, however, follow the views of the Federal Ministry for Internal Affairs that, in the event of an application for leave to remain, the foreigner “according to general rules of logic, the foreigner in truth did not want to depart voluntarily, now or in the future”.. On the contrary, this is a question of assessment of the evidence, which should be undertaken in assessing the circumstances of each individual case.

The official appeal also asserted that special circumstances within the meaning of § 55a, Para. 1 of the Aliens’ Police Act (governing personal circumstances) were, according to the intention of the legislator “exclusively circumstances within the country”, such as completing a school term that had already been started for a child of school age or similar grounds, but not, however, the circumstances stated by those involved in this case. The lack of a valid travel document and the situation that the foreigner did not have (or no longer had) an existing social network and an available apartment, was normally the case for former asylum seekers, so reference could not be made to special circumstances within the meaning of § 55a, Para. 1 of the Aliens’ Police Act. This also applied to the weather conditions or the prevailing time of year in the country of origin of the foreigner. In this regard, the Administrative Court held that the “special feature” of the circumstances within the meaning of legislation was that they should provide grounds for the need to grant a departure deadline of more than 14 days. Special circumstances could therefore – as in the present case – also be those, which are normally the case for former asylum seekers.

The extension of the deadline for departure was therefore duly granted.

Outcome:

The official appeal was refused.

Observations/comments:

Proceedings completed at the same time: 2012/21/0073, 2012/21/0074 regarding the wife and child of the Applicant.

In this case, the Federal Ministry for Internal Affairs lodged an official appeal against the judgment given by the Independent Administrative Board. Through an official appeal, the Federal Ministry has the option of seeking a legal remedy at law in1  the Administrative Court. The refusal by the Administrative Court was therefore made here in favour of the Applicant.

The Administrative Court refers in the judgment several times to the jurisprudence on delay in enforcement (§ 70 of the Aliens’ Police Act), which envisages a delay of a maximum of three months after an expulsion decision or a refusal of a residence permit becomes binding. The decisions cited therefore refer to a previous, but essentially similar legal position.

Other sources:

Government submission 1078 exhibit no. 24. Legislation period 30 f or 43 f.