Administrative Court overrides negative finding together with a Nigerian's return decision
Supreme Administrative Court suspends a Nigerian's negative decision in conjuction with expulsion order
Mr. M. is from Nigeria und lodgen an asylum application in June 2010. In its decision from August 2010 the Feder Asylum Office (FAO) rejected the application and concluded that Greece was responsible for the review of the asylum proceeding.
After the decision became final, Mr. M. lodged another asylum application in May 2011, which was rejected the same month. The appeal against it was rejected by the decision of the Asylum Cout in June 2013.
In Oktober 2012 the provincial police authority issued a 10 year return ban against Mr. M. due to his criminal behavior. After the appeal was lodged, the Independent Administrative Senat, in its decision from April 2013, reduced the ban to six years.
Subsequently in November 2013, Mr. M applied for a residence permit at the immigration authority, which was rejected by a decision from the Federal Asylum Office in April 2014 (FAO). In effect, Mr. M. lodged an appeal to the Federal Asylum Court (FAC) in May 2015, which the court rejected in its decision from Dezember 2018.
Consequently, Mr. M. lodged a high court appeal to the Supreme Administrative Court (SAC), which in its decision from June 2019, suspended the contested decision due to unlawfullness. The SAC argued that Mr. M was in partnership since 2014, had two children with his partner, and all family memebers were legally residing in Austria. Even though Mr. M. exhibited criminal behavior in 2012, it did meet the threshold of a justifiable threat assessment. Also the FAC should have taken a closer look at the consequences of a separation with regards to the wellbeing of the children.
As the FAC neglected to make the necessary statements in this regards, did not justify the assumption the family life could be resumed in Nigeria, also did not honor the integrative efforts of Mr. M. sufficiently or fully consider the right of the residence of the family members in Austria, the decision of the FAO was suspended.