The applicant, a Cuban national, requested international protection in Austria on 15 June 2023, claiming that there was ‘no future in Cuba due to poverty, famine and crime’. She further referred to a large demonstration in July 2021, which the Cuban government did not accept, after which participants were allegedly observed by the police. The applicant stated that her stepfather had been imprisoned for 7 days due to his participation in that demonstration. On 30 December 2024, the Federal Office for Immigration and Asylum (BFA) rejected her application for international protection, refused a residence permit, issued a return decision, found deportation to Cuba permissible, and set a deadline for voluntary departure. The applicant lodged an appeal against this decision before the Federal Administrative Court (BVwG), which dismissed the appeal as unfounded without holding the oral hearing requested. The applicant lodged an extraordinary appeal against this judgment before the Supreme Administrative Court (SAC), claiming that the BVwG had unlawfully refrained from holding an oral hearing.

The SAC recalled its established case-law on Section 21(7) of the BFA-VG, according to which refraining from holding an oral hearing would be only justified if the facts essential for the legal assessment had been fully, properly and up to date established by the BFA, if the assessment of evidence had been lawfully disclosed, and if the administrative court shared the authority’s fundamental considerations.

The SAC acknowledged that the lower court had stated that it concurred with the BFA’s assessment that the applicant left Cuba due to the political situation. However, the SAC noted that the lower court at the same time added, in contrast to the BFA’s assessment, that a threat from the Cuban police or the Cuban state, continuous surveillance of the applicant’s family, and persecution based on the stepfather’s participation in the July 2021 demonstration had not proven to be credible. The SAC also noted that the lower court further relied on country-of-origin information (COI) reports stating that there was no indication of ‘clan liability’, and found a lack of temporal connection between the events invoked and the applicant’s departure from Cuba at the end of 2022. According to the SAC, the assessment of the lower court amounted to a non-insignificant supplementary assessment of evidence, which usually required an oral hearing, as a personal impression of the person concerned had to be obtained. Consequently, the SAC held that the conditions under Section 21(7) of the BFA-VG for dispensing with the oral hearing were not met.

The SAC held that failure to comply with the obligation to hold an oral hearing led to annulment due to violation of procedural provisions, particularly the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) and the right to an effective remedy under Article 47 of the Charter of Fundamental Right of the European Union (EU Charter), without the need to examine the relevance of the procedural defect. The contested decision was therefore set aside pursuant to Section 42(2)(3)(c) of the VwGG on the ground of illegality due to a violation of procedural rules.