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Austria/ Constitutional Court / [2019] E137/2019

Afghan citizen v. Austria

Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Type:
Decision
Decision date:
11/09/2019

Key facts of the case:

The complainant, an Afghan national, filed an application for international protection in Austria and submitted various medical certificates to substantiate his mental illness. The Federal Office for Immigration and Asylum rejected his application explaining that a return to a familiar environment in Afghanistan and his relatives would rather lead to a significant improvement of his state of health. He was thus denied the subsidiary protection status, received a temporary entry ban, and was issued a return decision. The complainant appealed against this decision and brought forward that the authorities ignored the conclusions of a medical specialist. He further demanded an oral hearing. The Federal Administrative Court rejected this appeal, stating that it was not necessary to hold an oral hearing because the facts of the case were clarified sufficiently. The complainant then filed an appeal to the Constitutional Court according to Art 144 of the Austrian Constitution and argued that the Federal Administrative Court should not have regarded the facts of the case as clarified and should have conducted an oral hearing. The authorities’ assumption that the complainant will find a beneficial social safety net in Afghanistan would be against the expert's view, according to which a return to Afghanistan would significantly worsen the state of his health. The complainant argued that the omission of a hearing violates his right under Article 47 (2) CFR.

Key legal question: 

The key question to be clarified was whether the Federal Administrative Court had to hold an oral hearing in this case in order not to violate Article 47 (2) CFR. The Constitutional Court referred to one of its previous rulings concerning a case with diverging medical findings, and stated that it has already been established that the Federal Administrative Court has to determine the actual health status of an applicant by way of an oral hearing or another expert opinion in case of conflicting medical findings. In this case, there are no two conflicting expert opinions, but still it is not clear what conclusions were to be drawn from the opinion. The Constitutional Court reasoned that the Federal Office for Immigration and Asylum had assumed that a return would significantly improve the state of health of the Afghan citizen, while the complainant referred to an expert opinion, according to which a return to Afghanistan would lead to a significant deterioration of the complainant’s health status. The Constitutional Court found that this contradiction should have been clarified by the Federal Administrative Court and also found that the Federal Administrative Court was wrong to assume that the facts of the case were clarified in the sense of § 21 (7) Federal Act on the General Rules for Procedures at the Federal Office for Immigration and Asylum (BFA-Verfahrensgesetz, BFA-VG).

Outcome of the case:

The Constitutional Court ruled that Article 47 (2) CFR was infringed on in the case concerning the non-recognition of subsidiary protection status and the granting of a temporary entry ban and a return decision concerning a mentally ill Afghan national. The facts were not clarified sufficiently as it was not clear what conclusions were to be drawn from the medical expert’s opinion. An oral hearing (in particular a hearing of a medical expert) would have been necessary in order to determine whether or not a return to Afghanistan would deteriorate the health status of the applicant.