The case concerned a family from Azerbaijan including their four children who were born in Austria in 2013, 2014, 2018 and 2020 and against whom the BFA issued return decisions on 28 October 2022 and 10 November 2022 as a result of unsuccessful asylum applications. Against these decisions, the applicants appealed before the Federal Administrative Court, which rejected the appeal as unfounded by judgement of 6 February 2023. The applicants lodged an onward appeal against this decision before the Supreme Administrative Court.

In their statements, the applicants argued that the Federal Administrative Court had failed to consider the well-founded fear of the applicants to be forced to military service due to the war between Azerbaijan and Armenia. Regarding the return decision, the applicants stated that the Federal Administrative Court had failed to consider the best interests of the children and that the minors should have been heard in the proceedings.

The Supreme Administrative Court rejected the appeal insofar as it was directed against the refusal of international protection or the granting of subsidiary protection. With regard to the return decisions, the Supreme Administrative Court referred to its previous case-law on the consideration of the best interest of the child in the context of return decisions. The Supreme Administrative Court held that pursuant to Section 9 of the BFA-Procedures Act a proportionality test had to be carried out with regard to the right to private or family life pursuant to Article 8 of the ECHR in the event of a return decision. As part of this assessment, the Supreme Administrative Court held that the best interests of the child included the degree of difficulties encountered in the home country, the social, cultural and family ties to both the country of residence and the home country, the question of where the child was born, in which country and in which cultural and linguistic environment the child lived, where the child completed schooling, whether the child spoke the language of the home country and whether the child was at an adaptable age. 

The Supreme Administrative Court referred to previous case law where it had stated that the criteria mentioned in Section 138 of the General Civil Code could be considered when assessing the best interests of the child in administrative law decisions. However, the court noted that the civil law provisions served a different purpose than the administrative law provisions and that therefore, when issuing a return decision, it had to be noted that the best interests of the child did not take absolute precedence over the public interests which also had to be considered. The specific weighting with regard to the proportionality test always depended on the individual circumstances of the case.

On the question of whether children had to be heard in the proceedings of lodging return decisions, the Supreme Administrative Court held that pursuant to the procedural laws, it was generally permissible to hear children as parties and witnesses whereby the credibility of the children’s statements, their sometimes vivid imagination and the different mental maturity had to be considered. Thereby, it had to be borne in mind that an interrogation before an authority or a court was a particular burden for children and that especially in asylum proceedings the vulnerability and special needs of minor children had to be respected. The Supreme Administrative Court further held that contrary to taking evidence or to be heard as a witness, the procedural administrative laws did not provide for children to be questioned before the authorities or the courts merely for the purpose of obtaining their opinion (including their wishes), as it was the case in an administrative hearing. In these cases, the statements had to be made by the legal representative.

Based on the above the Supreme Administrative Court decided that the Federal Administrative Court had not sufficiently considered the best interests of the children and therefore applied an incorrect standard in tis examination of the return decision. It therefore annulled the contested decisions in this respect.