Ex-post control
Federal Asylum Office disrespects right to private and family life
In family proceedings, the Federal Asylum Office also prevented or delayed
the entry of relatives during the reporting year. This violates the constitutionally
guaranteed right to respect for private and family life.
Article 8 ECHR obligates the state to respect family life. The Asylum Act (Asylgesetz)
enables relatives of individuals entitled to asylum or subsidiary security to apply
for entry at the Austrian representation authority abroad. Family members must
be granted the entry visa if the Federal Asylum Office informs the embassy that
relatives are likely to be granted the same security as the person approved for
asylum. According to the Asylum Act (Asylgesetz), the term “relative” only includes
the spouse, unmarried children who are minors, as well as the parents of an
unmarried child who is a minor.
No reference to DNA
analysis
In July 2012, the wife and daughter of a refugee whose status was acknowledged
in Austria applied to the Austrian Embassy in Nairobi for a family consolidation. The
father did not state during the asylum process in 2010 that he had a daughter.
He only learnt that she was born later on. The Federal Asylum Office doubted the
family relationship and made a negative decision. The AOB’s objection was that
the Federal Asylum Office neither asked Mr N.N. about the contradictions nor gave
him an option to prove his paternity by DNA analysis.
The AOB identified another violation of Article 8 ECHR in another case of family
proceedings. Even though the Austrian Embassy at Addis Abeba had already
suggested DNA tests when passing on the application, the Federal Asylum Office
only asked the representation authority to inform the applicant of this four months
later. The person granted for asylum was also only informed later. Subsequent
steps in the proceedings were also sluggish.
More information for
affected parties
In response to an earlier case (see annual report of 2012), the Federal Ministry
of the Interior stated that the course of action of the Austrian representation
authority in the proceedings had changed according to Section 35 of the Asylum
Act (Asylgesetz). The Federal Ministry of the Interior implemented an opinion by
the Administrative Court of Austria (dated 13 December 2012, 2012/12/0211-5)
according to which the asylum authority is obligated to notify the applicants if an
application is rejected. The representation authorities now only inform applicants
in writing if the Federal Asylum Office releases a negative statement and state the
reasons for the rejection. In addition, it sends a notification that reapplication is
possible at any time.
Individual cases: VA-BD-I/0113-C/1/2013, BMI-LR2240/0092-III/5/2013;
I/0475-C/1/2012, BMI-LR2240/0691-III/5/2012, I/0099-C/1/2012, BMILR2240/0418-II/3/2013
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