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Austria
Country of Decision : Austria
Court Name : AT: Supreme Administrative Court [Verwaltungsgerichtshof - VwGH]
Date of decision : 06/08/2020
Type : Judgment
ECLI : AT:VWGH:2020:RA2020010142.L01
Case Number/Citation/ Document Symbol :

Austrian Federal Office for Aliens and Asylum (BFA) v Federal Administrative Court

AT: The Supreme Administrative Court clarifies situations when a referral back to the determining authority is necessary to remedy investigation deficiencies

The applicant, Algerian national, submitted an application for international protection in Austria in 2019. Prior to that he applied in the Czech Republic and was refused asylum. Based on the EURODAC hit, the Austrian authorities requested a take back under article 18 of the Dublin III Regulation that was accepted by Czech Republic. On 12 March 2020 the Czech Republic was informed that the transfer period is 18 months according to article 29 paragraph 2 pf the Dublin III Regulation. The decision was contested, and the Federal Administrative Court held that no determination can be made on the transfer in the light of the COVID-19 pandemic, the serious situation of the healthcare system in Europe, the suspension of Dublin transfers and the health condition of the applicant who suffers from various diseases.

The Federal Office for Aliens and Asylum contested the decision, and the Supreme Administrative Court allowed the revision of the Federal Administrative Court decision. It held that the objective is to resolve promptly a complaint raised in the administrative procedure and the Federal Administrative Court shall not refer back a case for an investigation that can be conducted by the later, for example when the information can be easily researched on the current restrictions due to COVID-19.  When it can be assumed that the Federal Administrative Court can remedy the deficiencies in the investigation itself quickly and without great effort, it must refrain from filing a complaint in accordance with Section 21 (3) second sentence BFA-VG and supplement the investigation procedure (including the determination of any missing facts) itself. 

COVID-19/Emergency measures; Dublin procedure;

Dublin Regulation III (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for IP);

EASO IDS

Austria, Supreme Administrative Court [Verwaltungsgerichtshof - VwGH], Austrian Federal Office for Aliens and Asylum (BFA) v Federal Administrative Court, AT:VWGH:2020:RA2020010142.L01, 06 August 2020. Link redirects to the English summary in the EASO Case Law Database.

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=1677