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Country of Decision : Austria
Court Name : AT: Supreme Administrative Court [Verwaltungsgerichtshof - VwGH]
Date of decision : 07/09/2020
Type : Judgment
ECLI : AT:VWGH:2020:RO2020010007. J00
Case Number/Citation/ Document Symbol :

Federal Office for Foreign Affairs and Asylum v Federal Administrative Court (Bundesverwaltungsgericht - BVwG)

AT: The Supreme Administrative Court confirms that a notification could not be done in remote/video interview

MM and F, nationals of Pakistan, applied for international protection on 4 October 2015, but it was rejected  and the Federal Administrative Court confirmed it by decision of 22 October 2018, jointly with the issuance of a return order against the applicants.  A subsequent application was submitted from detention centre by the second applicant, on 3 March 2020. On 18 March 2020, the Federal Office for Foreign Affairs and Asylum conducted the interview remotely, by video-conference tools, and with the assistance of an interpreter, present at the Office and a legal representative, present at the detention centre. The report of the interview, with signatures of the present parties, was exchanged via electronical means.

On 20 March 2020, the decision to repeal the protection against deportation was notified to the applicant, with the assistance of an interpreter by video-conference, but the applicant was not present at the announcement done by using technical tools. The minutes of the communication by electronic means was transmitted also remotely to the applicant. The applicant contested the decision and invoked that according to legal provisions, only the interview can be done remotely, but the notification of decision by electronic means is deprived of legal basis. By decision of 25 March 2020, the appeal was admitted by the Federal Administrative Court which reiterated that an oral communication of a decision must be conducted by a formal announcement of its content to parties present. When a party is not present, the decision could not be promulgated in accordance with paragraph 62 (2) of the Asylum Law. In the present case, the applicant was not present to the communication by videoconference, thus the contested decision was not duly adopted. The Federal Administrative Court held that according to national legislation and to the case law of the Supreme Administrative Court, the possibility of communicating decisions by use of technical means of transmitting words and images sis not provided.

The Supreme Administrative Court rejected as inadmissible the appeal submitted by the Federal Office for Foreign Affairs and Asylum and confirmed the decision of the Federal Administrative Court from 25 March 2020.

Asylum Procedures/Special Procedures; COVID-19/Emergency measures; First Instance determination; Pakistan;

National law only (in case there is no reference to EU law/ECHR);

EASO Annual Report on the Situation of Asylum in the EU

Austria, Supreme Administrative Court [Verwaltungsgerichtshof - VwGH], Federal Office for Foreign Affairs and Asylum v Federal Administrative Court (Bundesverwaltungsgericht - BVwG), AT:VWGH:2020:RO2020010007. J00, 07 September 2020. Link redirects to the English summary in the EASO Case Law Database.