Austria – Federal Administrative Court, 24 March 2015 1434108-2/21E
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Federal Administrative Court |
| Date of decision: | 24-03-2015 |
| Citation: | Spruch: W211 1434108-2/21E |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
Headnote:
An excessive length of the procedure (in this case 2 years and 5 months) for examining the jurisdiction for the application for international protection, which is not caused by the protection seeker himself, leads to an obligation of the Member State to decide the case itself (“duty of self-entry”). Thus this Member State has jurisdiction for the application for international protection to guarantee a fast and efficient procedure within the Dublin III-Regulation.
Facts:
The compliant has the Afghan citizenship and applied for International Protection on the 14th of October 2012 in Austria. According to her statement, she fled from Afghanistan to the Iran in order to escape from the Taliban. According to EURODAC she was registered in Greece and Hungary, but did not want to return to either country due to the conditions there.
Her application in Austria was rejected as inadmissible, Hungary was declared responsible and her expulsion to Hungary was ordered. The appeal lodged against this decision was dismissed by the Asylum Court (Asylgerichtshof). A further appeal against the decision of the Asylum court was lodged with the Constitutional Court. In its decision of 17 February 2014, the Constitutional Court annulled the decision of the Asylum Court on the grounds that the latter had not used the most recent country reports for Hungary in its decision (equal treatment of foreigners among themselves). The case was referred to the Federal Administrative Court. Further excessive procedural delays followed.
Here, the Federal Administrative Court is investigating the question of whether the excessive length of the proceedings makes the Member State responsible for the examination of the application for international protection (“duty to self-entry”).
Decision & reasoning:
According to § 5 AsylG, an application has to be dismissed, if another state is responsible for the examination of the application for the international protection. However, the Member State Member State in which the applicant is located has to ensure that a situation in which the applicant’s fundamental rights are violated is not aggravated by an excessive lengthy procedure for determining the responsibility. Otherwise, the objectives of the Dublin system, namely the rapid and efficient determination of the Member State responsible for examining the application, are violated (Recital Nr. 4 Regulation Nr. 3432003; Recital Nr. 5 Regulation Nr. 604/2013). Thus the excessive length of the proceeding makes the Member State responsible for the examination of the application for international protection.
The court recognised, that the long duration (two years and five months) led to a violation of this regulation. Additionally, the compliant was not responsible for the delay. Thus, the member state must examine the application himself, i.e. begin with the substantive examination of the application (“duty of self-entry”). For the Federal Administrative Court results this in the automatic jurisdiction of Austria to examine the application.
Outcome:
The complaint was upheld, the decision of the Asylum Court was overturned and the proceedings were declared as admissible in Austria.
Subsequent proceedings:
Decision to the revision:
The revision in accordance to Art. 133 IV B-VG is not admissible, because there was no fundamental question.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| 4 |
| Austria- §21 III BFA – VG |
| Austria – Art. 133 IV B-VG |
| Austria - §9 II BFA – VG |
| Austria- §§ 5 |
| 10 AsylG |
Cited Cases:
| Cited Cases |
| CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland |
| CJEU - C-4/11, Bundesrepublik Deutschland v Kaveh Puid |
Other sources:
Domestic Case Law Cited
OGH 22.03.1992, 5Ob105/90