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Federal Law Concerning the Granting of Asylum (Asylum Act) in the Republic of Austria (1997) (English)
Federal Law concerning the Granting of Asylum
(1997 Asylum Act)
unofficial consolidated version
Issued
on 14 July 1997 Federal Law Gazette of the Republic of Austria, FLG I No. 76/1997, amended by FLG I No. 4/1999, FLG I No. 41/1999, FLG I No. 196/1999, FLG I No. 82/2001 and FLG I No. 126/2002.
1997 Asylum Act (NR: GP XX RV 686 AB 755 S. 77. BR: 5456 AB 5465 S. 628, NR: GP XX IA 842/A AB 1494 S. 150.
BR: 5815 AB 5839 S. 647)
The National Council has ruled as follows:
Table of Contents
Section 1: Definitions
Article 1
Section 2: Protection of refugees in Austria
Article 2 Scope of protection
Article 3 Applications for asylum
Article 4 Inadmissibility of asylum applications by reason of safety in a third country
Article 5 Inadmissibility of asylum applications by reason of absence of responsibility under treaty provisions
Article 6 Manifestly unfounded applications for asylum
Article 7 Asylum granted upon application
Article 8 Evaluation of the applicability of thenon-refoulementprinciple
Article 9 Asylum grantedex officio
Article 10 Applications for extension of asylum
Article 11 Extension of asylum
Article 12 Refugee status
Article 13 Disallowance of asylum
Article 14 Deprivation of the right of asylum
Article 15 Limited right of residence
Section 3: Entry and residence of aliens seeking protection
Article 16 Entry authorization
Article 17 Entry
Article 18 Appearance before the Federal Asylum Agency
Article 19 Provisional right of residence
Article 20 Persons entitled to permanent and limited right of residence
Article 21 Protection against termination of right of residence
Article 22 Loss of right of residence
Section 4: Proceedings
Article 23 Procedural law
Article 24 Submission of applications
Article 25 Competence to act
Article 26 Information and instructions
Article 27 Interview
Article 28 Duty of investigation
Article 29 Administrative decisions
Article 30 Discontinuation
Article 31 Non-relevance
Article 32 Summary appeal process
Article 33 Obligation to render decisions
Article 34 Stamp duty
Section 5: Photographing, fingerprinting and investigative procedures
Article 35 Photographing and fingerprinting procedures
Article 36 Investigative procedures
Section 6: Authorities
Article 37 Federal Asylum Agency
Article 38 Independent Federal Asylum Review Board
Section 7: International protection of asylum seekers and refugees
Article 39
Section 8: Support for asylum seekers and refugees
Article 40 Refugee advisers
Article 41 Integration assistance
Section 9: Final provisions
Article 42 Period of validity
Article 43 Relationship to the Geneva Convention on Refugees
Article 44 Transitional provisions
Article 45 References
Article 46 Execution
Section 1
Definitions
Article 1.
For the purposes of the present federal law:
1.Geneva Convention on Refugeesmeans the Convention relating to the Status of Refugees,Federal Law Gazette(FLG) No. 55/1955, as amended by the Protocol relating to the Status of Refugees, FLG No. 78/1974;
2.Asylummeans permanent right of entry and residence accorded by Austria to aliens under the provisions of the present federal law;
3.Asylum seekermeans an alien from the time of submission of an asylum application or of an asylum extension application until the final conclusion or discontinuation of the procedure;
4.Country of originmeans the country of which the alien is a national or, in the case of a stateless person, the country of his or her former habitual residence.
Section 2
Protection of refugees in Austria
Scope of protection
Article 2.
Aliens who are resident in the federal territory shall obtain asylum under the provisions of the present federal law and accordingly be recognized as refugees by operation of the law.
Applications for asylum
Article 3.
(1) Aliens who in Austria seek protection against persecution (article 1, section A (2) of the Geneva Convention on Refugees) shall request the granting of asylum by means of an application for asylum. A separate application for the determination of refugee status shall not be admissible.
(2) An application for asylum shall be effected if aliens indicate by whatsoever means to a security authority or to an agent of the public security service their wish to be afforded protection in Austria against persecution.
Inadmissibility of asylum applications by reason of safety in a third country
Article 4.
(1) An application for asylum shall be inadmissible if the alien is able to find protection against persecution in a country with which no treaty concerning the determination of responsibility for the examination of asylum applications is applicable (protection in a safe third country).
(2) Protection in a safe third country shall exist for aliens if a procedure for the granting of refugee status in accordance with the Geneva Convention relating to the Status of Refugees is available in a country where they are not exposed to danger as specified in article 57, paragraph (1) or (2), of the Aliens Act (FrG), or is guaranteed via other countries (asylum procedure), and they are
entitled to reside in that country during such procedure and if they have protection there against deportation to their country of origin, including via other countries, provided that they are exposed in
their country of origin to danger as specified in article 57, paragraph (1) or (2), of the Aliens Act. The foregoing shall, in cases involving the same protection from rejection at the border, forcible return or deportation, apply to countries which have already rendered a decision in a procedure for the granting
of refugee status in accordance with the Geneva Convention relating to the Status of Refugees.
(3) The requirements set out in paragraph (2) above shall generally be met in a country if that country has ratified the Geneva Convention relating to the Status of Refugees and established by law an asylum procedure incorporating the principles of the aforesaid Convention, and has also ratified the Convention for the Protection of Human Rights and Fundamental Freedoms, FLG No. 210/1958, and Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, plus Appendix, FLG III No.
30/1998. Absence of safety in a third country may not be opposed on the basis of circumstances reflected in an existing act adopted by the Council of the European Union.
(4) The question of protection in a safe third country shall be irrelevant if:
1. The asylum seekers are EEA citizens, or
2. Asylum has been granted in Austria to the parents of unmarried asylum seekers under full age, or
3. Asylum has been granted in Austria to the asylum seekers' spouses or under-age children.
(5) If aliens whose applications for asylum have been rejected as inadmissible pursuant to paragraph (1) above cannot be rejected at the border, forcibly returned or deported to a safe third country, the administrative decision rejecting the asylum application shall cease to be valid upon
receipt of the communication provided for in article 57, paragraph (7), of the Aliens Act. At that moment, the time-limit for rendering decisions, as referred to in article 73, paragraph (1), of the General Administrative Procedures Act (AVG), shall be re-computed; any pending appeal proceedings shall be discontinued as being no longer relevant.
Inadmissibility of asylum applications by reason of absence of
responsibility under treaty provisions
Article 5.
(1) An application for asylum which has not been ruled on in accordance with article 4 shall be rejected as being inadmissible if another country is responsible under a treaty for examining the asylum application. When rendering the administrative decision rejecting the application, the
Federal Asylum Agency shall also state which country is responsible. Any such decision shall be issued in conjunction with a expulsion order.
(2) The procedure set out in paragraph (1) above shall also be followed if another country is responsible under a treaty for determining which country is responsible for examining the asylum application.
(3) An expulsion order as referred to in paragraphs (1) and (2) above shall at all times be valid as a declaration of the admissibility of the rejection at the border, forcible return or deportation to the designated country.
Manifestly unfounded applications for asylum
Article 6.
Applications for asylum as provided for in article 3 shall be dismissed as being
manifestly unfounded if they clearly lack any substance. That shall be the case if, in the absence of any other indication of a risk of persecution in the country of origin:
1. It clearly cannot be concluded from the asylum seekers' allegations that they are in danger of being persecuted in their country of origin, or
2. On the basis of the asylum seekers’ allegations, the claimed risk of persecution in their country of origin is clearly not attributable to the reasons set forth in article 1, section A (2), of the Geneva Convention on Refugees, or
3. The asylum seekers’ allegations concerning a situation of danger clearly do not correspond with reality, or
4. The asylum seekers, despite being so requested, do not co-operate in the establishment of the material facts of the case, or
5. Owing to the general political circumstances, legal system and application of the law in the country of origin, there can generally be no well-founded fear of persecution for the reasons set forth in article 1, section A (2), of the Geneva Convention on Refugees.
Asylum granted upon application
Article 7.
Asylum seekers shall, upon application, be granted asylum by administrative decision of the authority if it is satisfactorily established that they are in danger of persecution in their country of origin (article 1, section A (2), of the Geneva Convention on Refugees) and none of the grounds set forth in the cessation or exclusion clauses in article 1, section C or F, of the Geneva Convention on
Refugees is present.
Evaluation of the applicability of thenon-refoulementprinciple
Article 8.
If an application for asylum is to be dismissed, the authority shall declareex officioby administrative decision whether the aliens' deportation, rejection at the border or forcible return to their country of origin is admissible (article 57 of the Aliens Act); such ruling shall be issued in conjunction with the order dismissing the asylum application.
Asylum grantedex officio
Article 9.
Aliens shall be granted asylumex officioby administrative decision without any further procedure if the Republic of Austria has declared its willingness to do so under international law.
Applications for extension of asylum
Article 10.
(1) Aliens shall request by means of an asylum extension application the extension of the right of asylum which has been granted to a family member on the basis of an asylum application orex officio.
(2) Asylum extension applications may be submitted at the earliest at the same time as the asylum application which according to the facts is related thereto. Such extension applications shall be admissible only in respect of parents of a child under full age or in respect of spouses and unmarried children under full age; moreover, in the case of spouses, they shall be admissible only if the marriage took place at the latest within one year following the entry of the alien who submitted the application for asylum.
Extension of asylum
Article 11.
(1) The authority shall, on the basis of an admissible application, grant asylum by extension if it is not possible for the asylum seeker to continue an existing family life, within the meaning of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, FLG No. 210/1958, with the family member in another country.
(2) Aliens who have submitted an application for extension of asylum may, in the procedure relating to their family member's asylum application, furnish independently any particulars which appear to them to be relevant for such procedure. If the asylum application is rejected as being inadmissible or is dismissed as being manifestly unfounded, the asylum extension applications which according to the facts are related thereto shall be deemed to be applications for asylum, unless the persons concerned, after being informed of the consequences, expressly waive such applications. The authority shall render its decision concerning these applications without delay; in the event of a waiver, applications for asylum from such aliens made within 30 days from the time when the ruling dismissing the asylum extension applications becomes final shall be inadmissible.
(3) In cases when aliens submit an asylum extension application while a procedure pursuant to article 7 is pending, no ruling shall be made on that application until a decision has been pronounced on their application for asylum. They may be granted asylum by extension only when their application
for asylum has been finally rejected or dismissed.
(4) Administrative decisions whereby family members have been granted asylum by extension shall cease to be valid and asylum extension applications shall be no longer relevant if the family members are granted asylum pursuant to article 7.
Refugee status
Article 12.
Rulings whereby aliens are granted asylumex officioor on the basis of an asylum application or of an asylum extension application shall be issued in conjunction with a declaration recognizing that refugee status is accordingly conferred upon the alien by operation of the law.
Disallowance of asylum
Article 13.
(1) Asylum shall be denied if any of the grounds set forth in the exclusion clauses in article 1, section F, of the Geneva Convention on Refugees is present.
(2) Asylum shall further be denied if aliens for cogent reasons constitute a danger to the security of the Republic or have been convicted, by a final judgement of an Austrian court, of a particularly serious crime and, by reason of such punishable act, represent a danger to the community. A conviction by a foreign court which satisfies the requirements set out in article 73 of the Penal Code shall be deemed equivalent to a conviction by an Austrian court.
Deprivation of the right of asylum
Article 14.
(1) Right of asylum shall be forfeitedex officioby administrative decision if:
1. Asylum has been granted on the basis of an asylum application orex officioand any of the grounds set forth in the cessation clauses in article 1, section C, of the Geneva Convention on Refugees has arisen;
2. Asylum has been granted by extension, the determining factor therefor has ceased to exist, and no other grounds for extending the right of asylum exist;
3. The aliens have the centre of their life in another country;
4. One of the grounds set forth in the exclusion clauses in article 1, section F, of the Geneva Convention on Refugees has arisen;
5. The aliens for cogent reasons constitute a danger to the security of the Republic or have been convicted, by a final judgement of an Austrian court, of a particularly serious crime and, by reason of such punishable act, represent a danger to the community. A conviction by a foreign court which satisfies the requirements set out in article 73 of the Penal Code shall be deemed equivalent to a conviction by an Austrian court.
(2) In cases of forfeiture of the right of asylum, the authority shall issue the forfeiture ruling in conjunction with a declaration that refugee status is accordingly no longer conferred upon the person concerned by operation of the law.
(3) Forfeiture rulings pursuant to subparagraphs 4 and 5 of paragraph (1) above shall be issued by the authority in conjunction with a declaration as to whether the aliens' rejection at the border, forcible return or deportation to their country of origin is admissible (article 57 of the Aliens Act).
(4) Forfeiture of the right of asylum pursuant to subparagraph 1 or 2 of paragraph (1) above shall no longer be admissible if five years have already elapsed since asylum was granted or if eight years have already elapsed since the relevant application for the granting of asylum was submitted and the aliens have their principal domicile in the federal territory. In such cases, the authority shall report the facts to the authority which is competent under the terms of the Aliens Act.
(5) If aliens who have been granted asylum acquire the nationality of a State member of the European Union or if, in the cases referred to in paragraph (4) above, they are issued with an unlimited settlement permit (article 23, paragraph (7), of the Aliens Act), the administrative decisions whereby asylum was granted and refugee status was recognized shall cease to be valid by operation of the law.
Limited right of residence
Article 15.
(1) Aliens whose application for asylum has been dismissed by a final ruling on grounds other than those set forth in the asylum exclusion clauses (article 13) and who are unlawfully resident in the federal territory shall be granted limited right of residence by administrative decision if, in accordance with article 8, their deportation, forcible return or rejection at the border has been
declared inadmissible.
(2) If the aliens are deprived of residence entitlement upon the dismissal of their application, the order granting limited right of residence shall be issued by the Federal Asylum Agency in conjunction with the dismissal ruling; if their residence entitlement ceases at a later date, limited right of residence
may be conferred at that time. Should the aliens be deprived of residence entitlement only upon the upholding of the dismissal ruling, the order granting limited right of residence shall be issued by the Independent Federal Asylum Review Board in conjunction with the appeal ruling. The extension of any such limited rights of residence and their revocation shall, however, be the responsibility of the Federal Asylum Agency.
(3) Limited right of residence shall be granted for a maximum period of one year and, after the second extension, for a maximum period of three years in each case. Limited rights of residence shall be revoked by administrative decision if the aliens can be reasonably expected to depart for their country of origin or if they incur one of the grounds for disallowance of asylum (article 13).
(4) Limited right of residence shall not be granted or shall be revoked by administrative decision if permanent right of residence is granted to the aliens in a safe third country.
Section 3
Entry and residence of aliens seeking protection
Entry authorization
Article 16.
(1) Asylum applications and asylum extension applications received by an Austrian diplomatic or consular authority in whose sphere of administration the applicants are resident shall be additionally valid as applications for the granting of entry authorization.
(2) In cases where such applications are filed, the diplomatic or consular authority shall ensure that the aliens complete an application form and questionnaire drawn up in a language understandable to them; the structure and text of the application form and questionnaire shall be determined by the Federal Minister of the Interior, in agreement with the Federal Minister for Foreign Affairs and after consultation with the United Nations High Commissioner for Refugees, in such a way that the completion thereof serves to establish the material facts of the case. Moreover, the diplomatic
or consular authority shall make a written record of the content of the documents submitted to it. The asylum application shall be forwarded to the Federal Asylum Agency without delay.
(3) The diplomatic or consular authority shall issue an entry visa to the applicant without further formality if the Federal Asylum Agency has notified it that asylum is likely to be granted.
Entry
Article 17.
(1) Aliens arriving via an airport or arriving directly (article 31 of the Geneva
Convention on Refugees) from their country of origin who file an asylum application or an asylum extension application at the time of the border control carried out at a frontier crossing point shall be brought before the Federal Asylum Agency unless they possess authorization to reside or their application is to be rejected by reason ofres judicata.
(2) Aliens who otherwise file an asylum application or an asylum extension application at the time of a border control carried out at a frontier crossing point shall – unless their entry is permissible under Section 2 of the Aliens Act – be rejected at the border and informed that they have the possibility either of seeking protection from persecution in the country in which they are currently
resident or of filing an application for asylum with the competent Austrian diplomatic or consular authority. If, however, such aliens request that their application for asylum be filed at the frontier, they shall be notified that in such event the asylum authorities will be involved in the decision concerning
their entry and that they will be required to await the decision abroad. For the purpose of making an asylum application in such cases, they shall be provided by the border control authority with an application form and questionnaire drawn up in a language understandable to them (article 16,
paragraph (2)).
(3) Aliens who subsequently file an application for asylum with the border control authority by means of an application form and questionnaire shall be furnished with a certification of their application, which shall be worded in such a way that it can be used in the country in which they currently reside as proof of the decision which is still pending concerning their entry. Moreover, the
border control authority shall make a written record of the content of the documents submitted to it and shall notify the alien of the date fixed for the final border control. The asylum application shall be forwarded to the Federal Asylum Agency without delay.
(4) Aliens who have filed an application for asylum in accordance with paragraph (3) above shall be permitted to enter Austria if the Federal Asylum Agency has informed the border control authorities that it is not unlikely that they will be granted asylum, in particular owing to the fact that their application is not to be rejected as being inadmissible or dismissed as being manifestly unfounded. If these requirements are not met, the border control authority shall notify the asylum seeker accordingly and shall inform him that he may request that his case be re-examined by the independent Federal Asylum Review Board(Unabhängiger Bundesasylsenat); in such event, the
Federal Asylum Review Board shall take the final decision concerning the asylum seeker's entry. If the asylum seeker's entry is not permitted, he shall be rejected at the border.
(5) Decisions pursuant to paragraph (4) above shall be rendered within five working days following submission of the asylum application. Aliens who file an application for asylum may be rejected at the border only after the matter has been dealt with by the Federal Asylum Agency, unless it is clear that their application is to be rejected by reason ofres judicata.
Appearance before the Federal Asylum Agency
Article 18.
(1) Asylum seekers and also aliens whose entry has been permitted in accordance with article 17 or who file an application for asylum within Austria shall be brought before the Federal Asylum Agency by agents of the public security service, in order to ensure the expulsion (article 2, paragraph (1) 7, of the Federal Constitutional Law on the Protection of Personal Liberty, FLG No.
684/1988), if they cannot produce any residence authorization or certification of provisional right of residence. Their appearance before the Federal Asylum Agency may be dispensed with if the material facts of their case can be otherwise established.
(2) With a view to ensuring the prompt conduct of the asylum procedure, the Federal Asylum Agency may designate accommodation, in particular within the scope of the provision of federal care, for asylum seekers in Austria, who may use such accommodation up to the time of their interview.
Provisional right of residence
Article 19.
(1) Asylum seekers who are in the federal territory, even if in connection with their appearance before the Federal Asylum Agency after arriving via an airport or after arriving directly from their country of origin (article 17, paragraph (1)), shall be provisionally entitled to reside unless their application is to be rejected by reason ofres judicata. Asylum seekers brought before the
Federal Asylum Agency may, however, be required, as to guarantee the rejection at the border, to remain at a specific place in the border control area or within the area of the Federal Asylum Agency during the week following the border control; such asylum seekers shall nevertheless be entitled to leave the country at any time.
(2) Asylum seekers whose entry took place by evasion of the border control or in breach of the provisions of Section 2 of the Aliens Act shall have provisional right of residence only when such right is conferred by the authority. Provisional right of residence shall be granted without delay by the authority, through the issue of the certification, to those asylum seekers whose applications are admissible but are not manifestly unfounded.
(3) Provisional right of residence shall be certifiedex officioin the case of asylum seekers to whom provisional right of residence is accorded. The layout of the certification form shall be determined by ministerial order of the Federal Minister of the Interior.
(4) Provisional right of residence shall terminate upon the discontinuation or final conclusion of the asylum procedure. The certification shall thereupon be withdrawn by the Federal Asylum Agency or by the federal police authority. Agents of the public security service shall be empowered to remove
these certifications. Such certifications shall be submitted without delay to the Federal Asylum Agency through the immigration authority of first resort in whose local operating area the agent intervened.
Persons entitled to permanent and limited right of residence
Article 20.
(1) The Aliens Act shall, with the exception of articles 33, 41 to 43, 45, paragraphs (3) and (4), 52 to 56, 59 to 63, 84 and 107, apply to aliens to whom asylum is granted by Austria or who possess limited right of residence. A residence ban may be imposed on refugees only if the requirements for forfeiture of the right of asylum pursuant to subparagraph 5 of article 14 (1) are met.
(2) A residence ban or expulsion order shall, notwithstanding the requirements set out in article 40 of the Aliens Act, be enforceable against aliens as referred to in paragraph (1) above only when such persons have lost their right of residence (article 31, paragraphs (1) and (3), of the Aliens
Act).
Protection against termination of right of residence
Article 21.
(1) Except as otherwise specified below, the Aliens Act shall apply in its entirety to asylum seekers, but articles 33, paragraph (2), 36, paragraph (2) 7, 55 and 61 to 63 thereof shall not apply to asylum seekers possessing provisional right of residence if:
1. They have submitted their application personally to the Federal Asylum Agency without being brought before it;
2. They have filed their application at the time of the border control or on the occasion of other contact made by them with a security authority or with an agent of the public security service.
(2) An asylum seeker may not be rejected at the border to his or her country of origin or in any event forcibly returned or deported; the transmission of personal data on an asylum seeker to his or her country of origin shall be inadmissible; however, data required for the purpose of obtaining the
necessary entry authorizations may be transmitted if the application has been dismissed or rejected – even if not finally – and the result of thenon-refoulementevaluation does not conflict therewith and the asylum seeker's identity is not clarified.
(3) Aliens whose application for asylum has been finally dismissed may be rejected at the border, forcibly returned or deported to their country of origin only if the asylum authority has declared by a final decision that such action is admissible pursuant to article 57 of the Aliens Act.
Loss of right of residence
Article 22.
The Federal Asylum Agency shall report any loss of right of residence under the present federal law without delay to the competent Aliens Police; the Independent Federal Asylum Review Board shall be authorized for such purpose. In all other respects, article 45, paragraph (1), the Aliens Act shall be applicable to the asylum authorities.
Section 4
Proceedings
Procedural law
Article 23.
Except as otherwise provided, the General Administrative Procedures Act shall apply to procedures pursuant to the present federal law.
Submission of applications
Article 24.
(1) Applications under the present federal law shall be submitted to the Federal Asylum Agency; where such applications are filed with a security authority, they shall be forwarded to the Federal Asylum Agency without delay (article 6 of the General Administrative Procedures Act).
(2) Applications under the present federal law may be filed without formality in any manner considered appropriate. Applications under the present federal law may be submitted in writing in any of the official languages of the United Nations. In cases where such submissions are not made in the German language, they shall be translatedex officio. In the case of oral applications, the security authority shall arrange for the applicant to designate an address for delivery of notifications, as defined in article 4 of the Process Service Act, FLG No. 200/1982.
Competence to act
Article 25.
(1) Aliens of full age shall be competent to act in procedures pursuant to the present federal law. Austrian law shall be authoritative with respect to the attainment of full age for the purposes of the present federal law, irrespective of the nationality of the alien (article 21 of the Civil Code).
(2) Minors of age[i.e. 14 to 18 years; note of the translator]whose interests cannot be defended by their legal representatives shall be entitled to file applications. Upon the initiation of a procedure, the legal representative shall be the locally competent youth welfare agency. As soon as a legal representative has to intervene on behalf of such juveniles in accordance with article 95, paragraph
(3), of the Aliens Act, he shall also be their representative for the purposes of the present federal law.
(3) In procedures pursuant to the present federal law, each parent shall be individually authorized to represent his or her child.
Information and instructions
Article 26.
(1) The Federal Minister of the Interior shall issue an explanatory leaflet setting out asylum seekers’ rights and obligations. The leaflet shall be prepared in advance in those languages, which it may be presumed will be understandable to the asylum seekers.
(2) In particular, the leaflet shall draw attention to the duty of asylum seekers to place themselves at the disposal of the authorities for purposes of the procedures pursuant to the present federal law, and to the legal consequences specified in article 30. A copy of the leaflet shall be provided to every asylum seeker at the earliest possible moment in a language understandable to him or her.
(3) Asylum seekers who, after submitting an application for asylum at the frontier, are to await the decision abroad shall, on being furnished with a copy of the explanatory leaflet, be informed that they are at liberty to avail themselves of advisory services concerning their case through ecclesiastical or humanitarian organizations.
Interview
Article 27.
(1) Asylum seekers shall be personally interviewed by the senior official of the
Federal Asylum Agency who is responsible to take the decision provided that the holding of such interviews is possible without disproportionate expense. An interview may be dispensed with if and to
the extent that the asylum seekers are not in a position to assist in establishing the material facts through the giving of testimony.
(2) Asylum seekers shall be obliged to supply the necessary information for the establishment of the material facts and to present any material evidence in their possession, including identity documents. If there is reason to assume that evidence or identity documents are not presented by asylum seekers in the course of their interview despite their attention being drawn to that obligation, the interviewer shall be authorized to order an immediate search of the asylum seekers’ clothing and of the receptacles brought with them. The search shall be carried out by an agent of the public security service or by an employee otherwise authorized to exercise official powers of command and
constraint, who shall be of the same sex.
(3) When appearing before the authority, asylum seekers may be accompanied by a person enjoying their confidence. Such person may be present during the interview. Asylum seekers under full age may be interviewed only in the presence of a legal representative. Interviews shall in all cases be subject to the rules applying to the conduct of interviews by agents of the public security service. Asylum seekers who base their fear of persecution (article 1, section A, of the Geneva Convention on Refugees) on interference with their right of sexual self-determination shall be interviewed by officials of the same sex.
Duty of investigation
Article 28.
The authority shall endeavourex officioat all stages of the procedure to ensure that information relevant to the taking of a decision is adduced or that incomplete information concerning the circumstances invoked in support of the asylum application is supplemented, that the documentary evidence to substantiate such information is specified or that the evidence offered is
complete and, in general, that any explanations required in support of the application are provided. If necessary, documentary evidence is also to be procuredex officio.
Administrative decisions
Article 29.
(1) Administrative decisions shall contain, in a language understandable to the
asylum seeker, the verdict, instructions concerning rights of appeal and the information specified in article 61a of the General Administrative Procedures Act. If the application is dismissed as being manifestly unfounded or rejected by reason of absence of competence on the grounds set forth in article 4 or 5, the administrative decision shall be accompanied by a translation, in that language, of the relevant statutory provision (articles 4 to 6).
(2) Administrative decisions rejecting an application for asylum on the ground set forth in article 4 shall be accompanied by a certification, drawn up in the official language of the safe third country, to the effect that a substantive examination has not been made of the alien's asylum application submitted in Austria on account of the protection existing in a safe third country
Discontinuation
Article 30.
(1) The procedures initiated following an asylum application or an asylum extension application shall be discontinued if the establishment of the material facts is not possible owing to the asylum- seeker's absence.
(2) Procedures which have been discontinued pursuant to paragraph (1) above shall be resumed upon the asylum seekers’ request if the persons concerned make themselves available for the taking of evidence. Discontinued procedures shall be resumed ex officio as soon as the establishment of the material facts is possible. Upon the resumption of the procedure, the time-limit for rendering decisions, as referred to in article 73, paragraph (1), of the General Administrative Procedures Act,
shall be re-computed. The resumption of a procedure shall be no longer admissible after the expiry of three years from the time of its discontinuation.
Non-relevance
Article 31.
The files on asylum applications and asylum extension applications made by aliens who, after their case has been dealt with by the Federal Asylum Agency, have not been granted entry (articles 16, paragraph (3), and 17, paragraph (4)) shall be closed as being no longer relevant.
Summary appeal process
Article 32.
(1) Administrative decisions whereby applications for asylum have been dismissed as being manifestly unfounded or rejected by reason of absence of responsibility on the grounds set forth in article 4 or 5 shall be subject to appeal within ten days only. If, within any such summary appeal process, the corresponding time-limit for lodging an appeal falls in the course of execution of an expulsion security measure, such measure shall in all cases be admissible during the non-elapsed period of that time-limit. A separate appeal against a ruling pursuant to article 8 shall in such cases be possible only if the existence of a danger, as referred to in article 57, paragraph (1), of the Aliens Act, is alleged. A separate appeal against administrative decisions whereby an asylum extension application submitted by family members has in those cases been dismissed as unfounded shall be inadmissible; such decisions shall, however, be deemed contested to the same extent by an appeal lodged against the ruling concerning the asylum application.
(2) The appeal shall be upheld if the authority's ruling that the application was manifestly unfounded or that there was absence of responsibility on the grounds set forth in article 4 or 5 is erroneous. In such cases, the appeal authority shall refer the matter back to the authority of first resort for the procedure to be re-conducted and for an administrative decision to be rendered; rulings pursuant to article 8 shall, however, in all cases be deemed to be annulled. Accompanying asylum extension decisions shall at the same time be annulled as having been superseded. If a decision whereby an application for asylum has been dismissed as being manifestly unfounded is upheld by the appeal authority, the appeal authority shall, for its part, in all cases make a ruling pursuant to article 8.
(3) The decision on the appeal shall be pronounced within ten working days following the date of receipt by the appeal authority. The time-limit for rendering decisions shall be extended to the degree essential for the establishment of the material facts; the total duration of the appeal procedure should not, however, exceed 20 working days. If the appeal is lodged in the course of execution of an expulsion security measure, such measure shall be admissible for a correspondingly longer period.
Obligation to render decisions
Article 33.
In matters where an appeal to the independent Federal Asylum Review Board is provided for, competence for rendering a decision shall devolve upon the independent Federal Asylum Review Board in accordance with article 73 of the General Administrative Procedures Act.
Stamp duty
Article 34.
Applications, letters of authorization, statements, attestations, and foreign birth, marriage or death certificates required in procedures under the present federal law and extensions of rights of residence shall not be subject to stamp duty. Also, no federal administrative charges or out-of-pocket expenses incurred in respect of official acts pursuant to or directly connected with the
purposes of the present federal law shall be payable.
Section 5
Photographing, fingerprinting and investigative procedures
Photographing and fingerprinting procedures
Article 35.
(1) The asylum authorities shall arrange for the photographing and fingerprinting of aliens who are at least 14 years old and who submit an asylum application or an asylum extension application and of aliens who are to be granted asylum pursuant to article 9 of the Asylum Act (article 64, paragraph (3), of the Security Policing Act (SPG), FLG No. 566/1991). The alien shall cooperate to the extent required for the photographing and fingerprinting procedures. The authorities shall further be empowered to carry out measures for the establishment of personal identity (article 64, paragraph (5), of the Security Policing Act). The photographing and fingerprinting
procedures and the establishment of personal identity may also be undertaken by agents of the public security service. In such cases, they shall intervene on behalf of the Federal Asylum Agency.
(2) The authority or agent of the public security service shall issue a notice to the person concerned requiring him to undergo photographing and fingerprinting and shall inform him of the determining reason for such procedures. They shall be empowered, if the person concerned fails to
comply with the notice without delay, to carry out the photographing and fingerprinting procedures by the exercise of direct powers of command and constraint insofar as such measure is actually possible and does not entail any violation of physical integrity.
Investigative procedures
Article 36.
(1) The authorities shall be empowered to use personal data on asylum seekers and refugees, in particular data processed in the central information gathering system in accordance with article 99, paragraph (1), of the Aliens Act, in so far as such information is required for the execution of the present federal law, for purposes of implementation of the Geneva Convention on Refugees abroad, for purposes relating to conventions determining the State responsible for examining applications for asylum, and with a view to the administration of criminal justice or to the maintenance of public safety.
(2) Information usable by virtue of the powers granted under paragraph (1) above shall in all cases include the names, place and date of birth, sex, photographic and fingerprint data, nationality, places of residence, parents' names, documents, information concerning applications for asylum submitted abroad, and status of the procedure.
(3) The data specified in paragraph (1) above may be transmitted to the following recipients in so far as they require such data for the discharge of the duties assigned to them:
1. The asylum authorities;
2. The security authorities;
3. The Office of the United Nations High Commissioner for Refugees in Austria;
4. The employment market service and local government bodies entrusted with the provision of integration assistance;
5. The local health insurance funds and the Federation of Austrian Social Security Institutions;
6. The foreign authorities responsible for the execution of the Geneva Convention on Refugees, if the establishment of identity or granting of asylum is not possible without the transmission of data to those authorities and if it is guaranteed that such data will not be accessible to authorities of the country where the asylum seeker or refugee claims a fear of being persecuted;
7. The parties to a convention determining the State responsible for examining applications for asylum.
(4) The security authorities shall transmit to the Federal Asylum Agency the photographic and fingerprint data processed by them in respect of any aliens on whom the Federal Asylum Agency has acquired various data of the same kind in the course of photographic and fingerprinting operations pursuant to article 35.
(5) Data acquired in accordance with paragraph (1) above shall be physically deleted as soon as it becomes known to the authority that the person concerned has acquired the nationality of a State member of the European Union or otherwise ten years after the final dismissal, rejection, withdrawal
or discontinuation of an asylum application or asylum extension application.
(6) In so far as the Federal Government is empowered under article 66 (2) of the Federal Constitution to conclude international treaties, it may, provided that a reciprocal arrangement is granted, conclude intergovernmental agreements concerning the communication of data, as referred
to in paragraph (1) above, where such data are required for the purposes stated in paragraph (1) above. In such cases, the transmission of such data shall be the prerogative of the Federal Minister of the Interior, and it shall be stipulated that the deletion of transmitted data shall be subject to the same
requirements as to substance that apply in Austria, and that nationals of the contracting States shall be excluded from the scope of application of such agreements.
Section 6
Authorities
Federal Asylum Agency
Article 37.
(1) The asylum authority of first resort shall be the Federal Asylum Agency, which shall be established in subordination to the Federal Minister of the Interior. The Federal Asylum Agency shall, with reference to individual cases, be the competent authority with regard to the exchange of information with those countries with which a treaty concerning the determination of
responsibility for the examination of asylum applications has been concluded.
(2) The Federal Asylum Agency shall be headed by a director. The principal seat of the Federal Asylum Agency shall be located in Vienna.
(3) The number of organizational units and the assignment of functions to them shall be established in a work allocation plan to be issued by the director.
(4) The director of the Federal Asylum Agency may, having regard to the number of asylum seekers normally resident in the individual administrative districts and to the number of asylum applications expected to be submitted at the individual border control points, establish branch offices of the Federal Asylum Agency in order to be able to conduct and conclude in an administratively efficient manner and without undue delay all the procedures to be undertaken.
(5) The asylum authorities shall ensure high standards of qualification of their personnel through their instruction and in-service training.
(6) Agents of the public security service shall be assigned or attached to the Federal Asylum Agency in order to discharge the duties entrusted to it. Such agents shall, within the scope of the performance of their duties pursuant to the present federal law, be empowered to take those steps of an official security nature which may not be deferred; in so doing, they shall intervene on behalf of the locally competent federal police authority or district administrative authority, and shall notify them without delay of the steps carried out.
(7) Employees who are not agents of the public security service may be authorized by the director of the Federal Asylum Agency to exercise powers of command and constraint as provided for under the present federal law, provided that such persons are duly qualified and specially trained for that purpose.
Independent Federal Asylum Review Board
Article 38.
(1) Appeals lodged against administrative decisions of the Federal Asylum Agency shall be ruled on by the independent Federal Asylum Review Board, which shall be established with its principal seat in Vienna. It shall be composed of a chairman, a deputy chairman and the requisite number of other members. The members, chairman and deputy chairman shall be appointed by the Federal President for an indefinite term. In the discharge of the duties assigned to them under the present federal law, they shall not be bound by any mandatory instructions.
(2) Work shall be allocated yearly in advance to the members by the independent Federal Asylum Review Board as a collegium; the member of the independent Federal Asylum Review Board who is responsible for a particular case in accordance with such allocation may be relieved of that case, solely in the event of impediment, by order of the chairman.
(3) A member of the independent Federal Asylum Review Board may be dismissed from office only by the plenum. A member of the independent Federal Asylum Review Board shall be removed if he:
1. So requests in writing;
2. Loses Austrian nationality;
3. Is unable to fulfil his duties as a member of the independent Federal Asylum Review Board by reason of his physical or mental condition (unfitness for public office) and is unlikely to recover his fitness to hold office;
4. Has been absent from duty for more than one year as a result of sickness, accident or incapacity and is unfit to hold office, or
5. Fails to meet the stipulations of paragraph (4) below.
(4) The members of the independent Federal Asylum Review Board shall be well-versed in the law and possess experience in a profession for which the completion of degree law studies or comparable training is prescribed. In the case of professional posts in the fields of asylum law, immigration law or aliens' employment law, such experience shall have been acquired over at least two years, and in the case of other professional posts at least four years. Throughout their term of office, they may not perform any activity which could call into question the independent exercise of their official duties.
(5) The filing of complaints with the Administrative Court against decisions of the independent Federal Asylum Review Board shall be admissible. The Federal Minister of the Interior shall be empowered to lodge official complaints on the ground of illegality, both for the benefit and to the detriment of the aliens concerned.
(6) Decisions of the independent Federal Asylum Review Board shall be rendered by one of its members.
(7) The member responsible for rendering the decision shall refer the pending case to a review panel, comprising three members designated in advance by the Federal Asylum Review Board as a collegium, if that member is of the opinion that the decision would constitute a departure from previous rulings of the Federal Asylum Review Board or of the Administrative Court, or if there are no consistent precedents for the issue at law which is to be resolved. A referral to the review panel shall also be made if the chairman of the independent Federal Asylum Review Board so orders by reason of the importance of the case.
(8) The chairman shall be responsible for ensuring the greatest possible uniformity in the rendering of verdicts while fully preserving the independence of the members.
(9) The provision of material and personnel requirements for the independent Federal Asylum Review Board shall be the responsibility of the Federal Chancellor.
Section 7
International protection of asylum seekers and refugees
Article 39.
(1) Asylum seekers shall be given an opportunity at any time to have recourse to the United Nations High Commissioner for Refugees.
(2) The United Nations High Commissioner for Refugees shall be notified without delay of the initiation of any procedure relating to an asylum application or to an asylum extension application. The United Nations High Commissioner for Refugees shall further be notified without delay in cases where a completed application form and questionnaire are presented in the course of a border control (article 16, paragraph (2)) or where a procedure is conducted against asylum seekers with a view to rejection at the border, forcible return or expulsion or to the imposition of a residence ban, deportation
or asylum forfeiture ruling.
(3) Applications filed at the time of the border control by asylum seekers arriving via an airport may not be dismissed as being manifestly unfounded or rejected by reason of existing protection in a safe third country except with the consent of the United Nations High Commissioner for Refugees.
The foregoing shall not apply in cases where rejection takes place because another State is responsible under a treaty for examining the application for asylum. Any measure to guarantee the rejection at the border which has been ordered shall in all cases be admissible up to midnight on the day when the opinion of the United Nations High Commissioner for Refugees is received.
(4) The United Nations High Commissioner for Refugees shall be entitled in all such procedures to request information, examine case records (article 17 of the General Administrative Procedures Act), be represented at interviews and oral hearings, and enter into contact with the persons concerned at any time.
(5) Administrative regulations for the implementation of the present federal law shall be forwarded without delay to the United Nations High Commissioner for Refugees. The same shall apply to administrative regulations for the implementation of the Aliens Act, in so far as they are of
importance to asylum seekers or refugees.
Section 8
Support for asylum seekers and refugees
Refugee advisers
Article 40.
(1) The Federal Minister of the Interior may appoint refugee advisers to assist aliens in matters relating to asylum law.
(2) Refugee advisers shall, upon request:
1. Provide aliens with information on any questions concerning asylum law;
2. Assist aliens in connection with the submission of an asylum application or of an asylum extension application;
3. Represent aliens in procedures pursuant to the present federal law or to the Aliens Act, unless the engagement of a lawyer is stipulated by law;
4. Be of assistance in connection with the translation of documents and the provision of interpreters.
(3) Refugee advisers shall be appointed by the Federal Minister of the Interior, following consultation with the United Nations High Commissioner for Refugees, from a list drawn up by the Austrian Bar Association(Rechtsanwaltskammertag).
(4) Refugee advisers must be eligible for election to the National Council.
(5) Refugee advisers who are employees of the Federal Government or of a provincial or municipal authority shall be entitled to reimbursement of travelling expenses in accordance with the travel cost regulations of the Federal Government; other refugee advisers shall be entitled to a refund
of travelling expenses to the extent due under the 1955 Travel Cost Regulation to a federal civil servant qualifying for a grade 3 expenditure entitlement and travelling on official business, in addition to compensation for time and labour expended, to be fixed by the Federal Minister of the Interior in
agreement with the Federal Minister of Finance.
Integration assistance
Article 41.
(1) Aliens who have been granted asylum may be granted integration assistance. The purpose of integration assistance shall be to bring about their full involvement in the economic, cultural and social life of Austria and the greatest possible equality of opportunity with Austrian citizens in these areas.
(2) Integration assistance shall, in particular, include:
1. Language courses;
2. Basic and advanced training courses;
3. Events organized to provide an introduction to Austrian culture and history;
4. Events arranged jointly with Austrian citizens to promote mutual understanding;
5. Dissemination of information concerning the housing market;
6. Benefits provided by the Refugee Integration Fund.
(3) Private, humanitarian and ecclesiastical organizations and voluntary welfare or local authority institutions shall, to the extent possible, be called upon to furnish integration assistance. The services to be provided shall be set out in a contract under private law, which shall also regulate the reimbursement of costs.
Section 9
Final provisions
Period of validity
Article 42.
(1)(Constitutional provision)Article 38, paragraph (l), shall enter into force on 1 January 1998; articles 25, paragraph (1), and 27 of the 1991 Asylum Act, FLG No. 8/1992, shall simultaneously cease to be in force.
(2) The other provisions of the present federal law shall enter into force on 1 January 1998; the other provisions of the 1991 Asylum Act shall simultaneously cease to be in force.
(3) Articles 4, 5, paragraph (3), 15, paragraphs (2) and (3), 21, paragraph (1), 22, 29, 30, paragraph (2), 32, 37 paragraph (1), 39, paragraph (3) and 44, paragraph (7), as amended by federal law FLG I No. 4/1999, shall enter into force on 1 January 1999.
(4) Article 4, paragraphs (2) and (3), article 19, paragraphs (3) and (4), and article 25, paragraph (1), as amended by federal law FLG I No. 82/2001, shall enter into force on 1 August 2001.
(5) Article 14, paragraph (5), article 35 and article 36, paragraph (5), as amended by federal law FLG I No. 126/2002, shall enter into force on 1 January 2003.
Relationship to the Geneva Convention on Refugees
Article 43.
The provisions of the Geneva Convention on Refugees shall remain unaffected.
Transitional provisions
Article 44.
(1) Procedures pending with the asylum authorities on 1 January 1998 shall be completed in accordance with the provisions of the present federal law. The Federal Minister of the Interior shall forward to the independent Federal Asylum Review Board any cases which are pending before him or which become pending following reversal of the appeal decision by the Constitutional Court or the Higher Administrative Court. There shall be no obligation on the part of the appeal authority to undertake anon-refoulementevaluation in cases where the ruling of the authority of first resort was issued prior to 1 January 1998.
(2) Procedures relating to administrative decisions under the 1991 Asylum Act which are contested before the Higher Administrative Court or the Constitutional Court and are not to be rejected pursuant to article 34 (1) of the Administrative Court Act (VwGG) or to article 19 (3) 2 (a), (b),
(d) or (e) of the Constitutional Court Act (VfGG) shall, upon the entry into force of the present federal law, revert to the stage prior to pronouncement of the appeal ruling, provided that they were contested prior to the proclamation of the present federal law.
(3) The Higher Administrative Court or Constitutional Court is to reject a complaint as being inadmissible, the parties to such proceedings at the highest level of jurisdiction shall personally bear the costs incurred by them. The Higher Administrative Court or Constitutional Court may, with due
regard for the need to maintain a reasonable ratio between the cases pending before the independent Federal Asylum Review Board and its personnel resources, defer the rendering of rejection decisions. However, in so doing, it shall render the corresponding decisions:
1. By 31 March 1998 at the latest in respect of cases pending since 1995;
2. By 30 June 1998 at the latest in respect of cases pending since the first half of 1996;
3. By 31 December 1998 at the latest in respect of cases pending since the second half of 1996;
4. By 30 June 1999 at the latest in respect of cases pending since the first half of 1997. The Higher Administrative Court or Constitutional Court shall forward the official copy of the decision in writing, together with the records of the administrative procedure, to the independent Federal Asylum Review Board; the time-limit referred to in article 73 of the General Administrative Procedures
Act shall in such cases be computed from the time of receipt of the decision by the asylum authority.
(4) If the asylum seekers are not accorded provisional right of residence under the present federal law (article 19), their entitlement to reside until a decision is rendered by the independent Federal Asylum Review Board shall be determined according to whether or not they were entitled to reside, during the course of the proceedings conducted at the highest level of jurisdiction, on the basis of the ruling of the Constitutional Court or the Higher Administrative Court regarding the suspensive effect of the complaint filed by them. In all other cases, the asylum seekers’ status during that time shall be determined by that of an alien whose application for asylum has been finally dismissed.
(5) Rulings of dismissal by virtue of the Asylum Act, FLG No. 126/1968, or of the 1991 Asylum Act shall in respect of the same case, in procedures pursuant to the present federal law, specify the facts which gave rise to rejection in the case ruled on.
(6) Aliens who had entitlement to asylum under the 1991 Asylum Act and aliens who prior to 8 March 1968 were provably treated by an Austrian security authority as refugees in accordance with the Geneva Convention on Refugees shall also be regarded as having entitlement to asylum within
the meaning of the present federal law. Administrative decisions whereby aliens have been granted limited right of residence pursuant to article 8 of the 1991 Asylum Act shall be regarded, during their period of validity, as decisions pursuant to article 15 of the present federal law.
(7) Procedures pending with the asylum authorities on 1 January 1999 shall be completed in accordance with the provisions of the present federal law, as amended by federal law FLG I No. 4/1999. Appeals lodged in due time in accordance with article 32, paragraph (1), as amended by promulgation FLG I No. 106/1998, shall be deemed to have been lodged in due time in conformity
with article 32, paragraph (1), as amended by federal law FLG I No. 4/1999.
References
Article 45.
References in the present federal law to other federal laws shall be understood to be references to their current wording. If references are made in other federal laws to provisions of the 1991 Asylum Act, the corresponding provisions of the present federal law shall apply in place thereof.
Execution
Article 46.
Execution of the present federal law shall be entrusted, with regard to article 38, to the Federal Chancellor; with regard to article 34, to the Federal Minister of Finance in so far as stamp duty is concerned; with regard to article 41, to the competent Federal Minister; with regard to paragraph (1), the first sentence of paragraph (2), and paragraph (3) of article 16, to the Federal
Minister for Foreign Affairs; and in all other respects to the Federal Minister of the Interior acting in agreement with the Federal Minister for Foreign Affairs with regard to the second sentence of paragraph (2) of article 16, and in agreement with the Federal Minister of Finance with regard to paragraph (5) of article 40.