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Asylum and aliens law procedures are administrative procedures. For these procedures, the General Administrative Procedures Act (AVG) and the BFA Procedures Act (BFA-VG) apply. The Asylum Act (AsylG) and the Aliens Police Act (FPG) however, contain a number of special procedural rules which regulate asylum and aliens law proceedings.
The procedure before the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) is regulated by the Asylum Act, the BFA Procedures Act (BFA-VG), by the General Administrative Procedures Act and the Federal Administrative Court Act (VwGVG) (see Overview of the Legal Framework).
The Asylum Act contains norms on the granting of international protection, expulsion procedures in connection with the rejection or dismissal of applications, provisions on the rejection of applications due to the existence of a “safe third country” or to the responsibility of another state according to the Dublin Regulation, norms on family reunification procedures and on airport procedures. In 2016, “special provisions to maintain public order during border checks” were added to the Asylum Act. It allows the Ministry of Interior to issue a decree that would enable the authorities not to examine asylum applications on the merits. This raised a big public debate about the potential introduction of a ‘quota’ of asylum claims per year, which would trigger the issuance of a decree once it is reached. However, no consensus was found on the matter and the decree was thus never issued. Moreover, the law does not foresee a limit of asylum applications that would trigger such a decree.
First instance procedure: The Asylum Act provides for a single procedure for applications for international protection. If such an application is lodged, the authorities have to decide whether the application is to be rejected on account of safety in a third country or the responsibility of another state. In the first stage of the procedure – called admissibility procedure – the authorities have to decide on the admissibility of the application. If the application is declared admissible, the authorities decide whether the person is to be granted refugee status. In case of rejection of the asylum claim on the merits, the authorities have to assess the need of subsidiary protection. National law does not foresee a separate application for subsidiary protection. In case of rejection of the subsidiary protection claim the authorities have to assess whether a return decision is admissible. All three examinations are done in one procedure. There is also an accelerated procedure for certain claims.
Appeal: Appeals to the Federal Administrative Court are possible against a decision rejecting the asylum application as inadmissible and also against a decision dismissing the application on the merits. The BFA Procedures Act (BGA-VG) regulates the appeal and its effects. Appeals against the decision rejecting the asylum application on the merits have to be submitted within four weeks and have suspensive effect, unless the BFA does not allow for the appeal to have suspensive effect. In the past, there were several legislative attempts to shorten the appeal period of four weeks to two weeks in all cases. The last legislative attempt was annulled by a ruling of the Constitutional Court in 2017.[1] Following the reform, in cases in which the appeal is rejected on formal or inadmissibility reasons and the decision is connected with a measure terminating residence, or when a return decision has already been issued, the appeal lasts only two weeks and does not have suspensive effect. Suspensive effect may be granted by the Court to an appeal against an expulsion order issued together with a decision rejecting the asylum application as inadmissible.[2]
Moreover, Article 18(1) BFA-VG provides a number of grounds for depriving suspensive effect. These include, inter alia, the applicant’s attempt to deceive the BFA concerning they true identity or nationality or the authenticity of their documents, the lack of reasons for persecution, if the allegations made by the asylum seeker concerning the danger they face are manifestly unfounded or if an enforceable deportation order and an enforceable entry ban was issued against the asylum seeker prior to the lodging of the application for international protection.
However, the Court may grant suspensive effect if there would otherwise be a risk of violation of the non-refoulement principle. The Court has to grant suspensive effect if an appeal is lodged against an expulsion order issued together with a decision rejecting the asylum application as inadmissible, if it can be assumed that the decision to refuse entry to the alien at the border and forcible return or deportation to the country to which the expulsion order applies would constitute a real risk of violation of the principle of non-refoulement according to Austria’s international obligations, or would represent a serious threat to their life or person by reason of indiscriminate violence in situations of international or internal conflict. The reasons must be set out in the appeal decision.
Together with the decision to reject the application for international protection, an expulsion order must be issued, unless reasons related to the right to family and private life according to Article 8 ECHR prevail over public interest and order, or where residence is permitted for other humanitarian reasons.
The evidential requirements are the same for refugee and subsidiary protection status. In appeal procedures before the Court, new facts and evidence may only be submitted in the following cases: if the grounds on which the first instance negative decision was based have undergone any material change; if the first instance procedure was irregular (e.g. if the right to be heard about the findings of the BFA was not respected, or if outdated country of origin information was used or evidence is missing to substantiate the reasoning of the BFA); if such new facts and evidence were not accessible earlier or if the asylum seeker had been unable to submit such new facts and evidence.[3] Decisions of the Court are issued in the form of judgments and all other decisions, such as those allowing the appeal to have suspensive effect, the rejection of an appeal because it was lodged too late, or on the continuation of an asylum procedures that was discontinued (i.e. decisions on procedural issues), are issued in the form of resolutions.
Onward appeal: The BVwG may decide that the rejection of the application can be revised before the Administrative High Court (Verwaltungsgerichtshof, VwGH). This possibility is foreseen if a decision on the case depends on a leading decision, e.g. if the Administrative Court’s decision is not based on a previous decision of the Administrative High Court. If the BVwG declares the ordinary revision inadmissible, the asylum seeker may bring in an extraordinary revision.[4] The BFA can also file a revision with the VwGH to challenge decisions issued by the BVwG.
Appeals to the Federal Constitutional Court (Verfassungsgerichtshof, VfGH) may be lodged in instances where the applicant claims a violation of a right guaranteed by constitutional law.
Return: At every stage of the procedure, asylum seekers are informed about the possibility of support for voluntary return. The BFA can also order a mandatory consultation with regard to return. In these cases, the applicant has to get in contact with the return counselling department of the state owned BBU GmbH. When an asylum seeker leaves the country – no matter if in the context of voluntary repatriation to their country of origin or if the person is not reachable for the authorities – the asylum proceedings are filed as discontinued. Upon return to Austria, an application to reopen the procedure has to be brought in.
Any application for international protection which is deemed inadmissible or rejected on the merits is automatically connected to a decision assessing whether a return to the country of origin is possible or if the right to private and family life of the applicant prevail. [5] The return decision is issued together with the negative decision concerning the asylum application by the BFA in first instance. Similarly, a return decision is also issued in the case of a withdrawal of international protection.
[1] Verfassungsgerichtshof, VfGH hebt verkürzte Beschwerdefrist in Asylverfahren als verfassungswidrig auf, 9 October 2017, G 134/2017, available in German at: https://bit.ly/3P2EFoU.
[2] § 16 BFA-VG.
[3] Article 20 BFA-VG.
[4] The BVwG can decide to declare the ordinary revision as admissible – which means that it considers that there is a fundamental legal question at stake – or as inadmissible – which means that the applicant and their lawyer must demonstrate themselves that there is fundamental legal question at stake so as to initiate an extraordinary revision. The main difference is that, in the case of an ordinary/regular revision, the applicant does not have to explain what fundamental legal question is at stake and that, in cases where the regular revision is declared as admissible, it is more probable that government sponsored legal aid will be granted (which is not a task of the BBU but of the bar association in case of appeals in front of the High Court).
[5] § 10 AsylG.