A Chinese national requested international protection in Austria on 26 September 2024, claiming that she was of Christian faith and had suffered domestic violence by her husband and his family, who belonged to the Buddhist religious community. She further alleged that she was held responsible for the death of her father-in-law, that Chinese authorities were unwilling to provide protection against domestic violence, and that, as a Christian, she was denied access to social benefits, including medical care.
On 23 January 2025, the Federal Office for Immigration and Asylum (BFA) rejected her application for international protection, denied her a residence permit, issued a return decision, declared removal to China permissible, and set a deadline for voluntary departure. The applicant lodged an appeal against this decision before the Federal Administrative Court (BVwG) which dismissed it as unfounded without holding an oral hearing. The applicant subsequently lodged an extraordinary appeal against this judgment before the Supreme Administrative Court (SAC), claiming that the lower court had wrongly dispensed with an oral hearing and had failed to properly engage with the arguments raised in the complaint.
The Supreme Administrative Court recalled its settled case-law according to which an oral hearing may be omitted under Section 21(7) pf the BFA-VG only if the decisive facts have been fully, properly, and up-to-date established by the BFA and if the court shared the essential elements of the BFA’s assessment of evidence. The complaint must not merely introduce abusive innovations, but substantiated objections must be examined.
The SAC noted that, contrary to the lower court’s view, the applicant’s complaint did not merely contain unsubstantiated denials. Rather, she had substantively challenged the BFA’s findings, in particular regarding the credibility assessment of domestic violence linked to her Christian faith; the assumption that she could rely on family support upon return; the finding that she could access basic social and medical services, arguing that lack of registration in the Hokou system, debt, and fines prevented such access.
The SAC held that the lower court wrongly classified these submissions as prohibited innovations and as an abuse of procedure. The SAC emphasised that the mere possibility of having raised arguments earlier did not in itself justify assuming abusive delay. According to the SAC, the lower court should not have assumed that the facts were sufficiently clarified within the meaning of Section 21(7) of the BFA-VG and was obliged to hold an oral hearing. The failure to do so constituted a procedural defect. The SAC expressly linked this obligation to the right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union (EU Charter), stating that non-compliance led to annulment without any need to assess the relevance of the defect.
The Supreme Administrative Court found the appeal admissible and well-founded. It set aside the decision of the lower court on the grounds of illegality due to violation of procedural provisions, specifically the unlawful omission of an oral hearing and therefore due to violation of Article 47 of the EU Charter.