Re Spitzer

CourtAdministrative Court (Austria)
Austria, Administrative Court.
Re Spitzer.

Aliens — Position of — Status of Refugees within Meaning of Refugees Convention of July 28, 1951 — Right to Return to Country of Residence — Time-Limit Imposed by Country of Residence for Return of Refugee — Failure to Observe Time-Limit — Whether Refugee Entitled to Continued Residence on Return after Expiration of Time-Limit — The Law of Austria.

The Facts.—The appellant was a refugee who in 1949 took up residence in Austria. In 1953 he left Austria for Brazil with a travel document issued by the Austrian Ministry of the Interior and containing a visa whereby he was granted the right to return to Austria on or before January 2, 1954. In fact, the appellant did not return to Austria until 1955, and he was then in possession of a Brazilian travel document containing a visa granted by the Austrian embassy in Rio de Janeiro and giving him the right to stay in Austria until April 15, 1955. In February 1955 he applied to the Austrian Federal Police for a permit to stay in Austria for a further period of one to two years. This application was refused, and the appellant was granted permission to stay in Austria only until July 5, 1955. The appellant claimed that, as a refugee within the meaning of the Geneva Convention of 1951 relative to the Status of Refugees, he was entitled to a residence permit in Austria. The Austrian Ministry of the Interior conceded that the appellant was a refugee within the meaning of the Convention, but contended that as he had not returned within the time-limit originally imposed when he left Austria, he was no longer entitled to claim a right of residence in that country.

Held: that the application must be refused. Since para. 13 (3) of the Schedule to the Convention provided that the time-limit for the return of a refugee to his country of residence may be “a period of not less than three months”, it followed that the country issuing a travel document was under no duty to permit the return of a refugee after the expiration of the time-limit imposed for his return. The appellant was therefore in the same position as any other alien.

The Court said: “It is admitted that the appellant must basically be considered a refugee within the meaning of the Convention. It is contended, however, that by reason of his sojourn in Brazil he is no longer entitled, on the basis of the Convention, to claim the right of residence beyond the period granted in the Austrian permit. This Court shares this view...

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