Austria – Federal Administrative Court, 17 November 2016, W111 2131009-1

Facts:

The appellants are a married couple and their minor child from Ukraine. After they had legally entered Austria with a visa, they lodged claims for international protection on 18 March 2015.

As grounds for their flight they, firstly, put forward that the family has been threatened by separatists over the phone after the main appellant refused their job offer. Moreover, he was beaten and his car was damaged twice. After the family relocated to Kiev, they were faced with the hate of the Ukrainian nationalists due to their origin from the oblast of Donezk because of which they claim to have been unable to find accommodation or employment. Furthermore, the main appellant was questioned by the Ukrainian secret service SBU and accused of collaborating with the separatists. Therefore, he was potentially facing a term of imprisonment of 10 years.

The Federal Office for Immigration and Asylum (“Federal Office”) rejected the applications both regarding the granting of asylum as well as of subsidiary protection and held that the deportation to Ukraine was permissible. In support of the conclusion that the facts in the present case did not arise to a claim for asylum, the Federal Office mainly referred to a general country report regarding the situation in Ukraine. In particular, the Federal Office argued that the appellants could have approached the authorities concerning the threat posed by the separatists because, according to the country information, the legal order in Mariupol was still intact. Furthermore, the appellants made use of an internal flight alternative and could have requested the help of the Ukrainian authorities regarding their difficulties in finding accommodation in Kiev. Finally, the initiation of criminal proceedings against the main appellant was also legitimate since he did not disclose the names of the two separatists and, thus, missed the opportunity to receive the help from the Ukrainian police. 

Moreover, according to the Federal Office, neither the information concerning the general situation in Ukraine nor the personal situation of the appellants would indicate facts that would lead to subsidiary protection being granted.

Due to the short duration of stay, the insufficient German language skills and the closer connection to the country of origin, thus, the public interest in the termination of residence prevailed.

The claimants appealed these decisions of the Federal Office to the Federal Administrative Court (FAC) on the grounds that they were substantively illegal, that the reasoning of the decisions was insufficient or incorrect and procedural rules were infringed.

Decision & reasoning:

Starting point for the reasoning of the FAC was the question whether, under national law, it was authorised to decide the case at hand itself or whether it had to refer the matters back to the Federal Office.  In essence, the issue was whether the Federal Office had met the requirements of proper investigations proceedings set forth in the relevant case law, in particular taking into account the peculiarities of asylum procedures, and thus whether the relevant facts were clearly established, which would be the prerequisite for a decision on the merits by the FAC.
In this regard,  the FAC held that the Federal Office had not met these requirements and therefore the contested decisions were suffering from considerable investigative deficiencies. Furthermore, it did not carry out its obligation to state reasons sufficiently.

Firstly, the FAC criticized that the Federal Office verified the detailed submissions of the appellants regarding their flight, which were without any contradictions, only by superficially referring to the existing country of origin information. The Federal Office did refer to certain passages of the country reports. Nevertheless, it did not actually take the information into consideration and did not compare such information with the parties’ submissions, as required by the relevant case law.
For example, the Federal Office held that, according to the country of origin information, the legal order in Mariupol was still intact, without taking into account the information regarding the critical security situation in Eastern Ukraine as well as the generally difficult situation, which has also been raised by the appellants.
The explanations concerning the situation of internally displaced persons were just as superficial. Again, the general information contained in the country reports was not related to the specific problems put forward by the appellants, a family with a child, concerning the difficulties in finding accommodation and employment in Kiev. Additionally, the country reports referred to did not even contain sufficient information on the current housing and employment situation of internally displaced persons. Such information, however, would have been vital for the assessment of the granting of a protection status as well as the internal flight alternative.
Finally, on the one hand, the country reports referred to were also lacking information which would have been essential to assess whether the alleged criminal prosecution of the main appellant by the Ukrainian secret service (SBU) due to the alleged collaboration with the separatist arises to persecution within the meaning of 1951 Refugee Convention. On the other hand, again there was no reference to the specific circumstances of the cases at hand.  

These identified shortcomings were also material to the case at hand because it could not be excluded a priori that the assessment of the applications lacking these deficiencies would have resulted in a more beneficial decision. Therefore, in the course of the continued administrative proceedings the country reports are to be replenished and up-dated accordingly and the appellants to be questioned in this regard. The same applies for the information regarding the current family and private life of the appellants in Austria.

Additionally, the court held that in the present circumstances there was no room for the investigation proceedings to be conducted and a first evaluation of the facts by the FAC. This results primarily from the peculiarities of the asylum procedure. This is not only intended to be as short as possible but its quality is also intended to be secured by specific stages of appeal. Moreover, the Federal Office as a specialised authority for the collection of the relevant country of origin information, including its sources, was better suited for a first evaluation of the facts.

Outcome:

The FAC annulled the contested decisions of the Federal Office and referred the matters back to it for new decisions to be issued.

Observations/comments:

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

Other sources:

Fister/Fuchs/Sachs, Administrative Court Procedures (2013)
§ 28 VwGVG (Federal Act on Procedures at Administrative Courts) Note 11

Reform of Administrative Litigation (2012), Federal Law Gazette I 51