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Austria / Supreme Administrative Court / Ra 2016/21/0144

Algerian Citizen v Austria

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Administrative Court
Decision date:

Key facts of the case:

The Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl, BFA) imposed detention pending removal on the applicant (an Algerian citizen) in order to ensure deportation. The applicant then lodged a complaint against this decision by stating that the objective of the deportation could not be achieved, because it was unlikely that the Algerian embassy would issue a return certificate within the time limit provided for in §80 FPG. He also referred to similar previous cases, which were decided upon differently by the Federal Administrative Court. The BFA objected the applicant’s statements. If the applicant’s identity could not be confirmed by the Algerian embassy, detention pending removal would be stopped. The Federal Administrative Court (BVwG) then dismissed the appeal by confirming the BFA’s opinion without a public hearing, as the facts of the case appeared to be clear (§21 para 7 BFA-VG). The applicant then lodged a revision against this decision, stating that the BVwG had deviated from the case-law of the Supreme Administrative Court according to which concrete statements on the feasibility of deportation are necessary. In addition, Article 47 CFR would require a public hearing when the case is first decided by a court. The applicant also raised concerns with regard to the admissibility of the revision under Article 133 (4) B-VG. The applicant raised concerns about the reimbursement of expenses which, according to him, would undermine the judicial review’s effectiveness. The Supreme Administrative Court referred to Art 133 (4) B-VG, (§21 para 7 BFA-VG, § 1 Z 3 bis 5 VwG-Aufwandersatzverordnung, § 1 Abs. 1 in conjunction with § 2 Abs. 1 BuLVwG-EGebV, 35 VwGVG, Art 5 para 4 ECHR and Art 6, 47 CFR.

Outcome of the case: 

The applicant’s revision was dismissed by the Supreme Adminsitrative Court (Verwaltungsgerichtshof, VwGH).  The VwGH repeatedly stated that Article 21 (7) BFA-VG (i.e. abstaining from a public hearing if the facts of the case are suffuciently clear) is in line with Article 47 CFR. As for the applicant’s argument that Article 6 CFR is opposed to a cost award in regard to the authority, which is charged before the BVwG, the Court found that there is no reference point neither in case-law of the ECJ, nor in the ECtHR. Since the legal situation is clear and there is no fundamental legal question within the meaning of Art 133 (4) B-VG, the VwGH dismissed the revision.