DECISION
In the administrative litigation
1. Mr. xxx,
nationality: Iraqi,
2. the woman xxx,
3. of xxx,
Nationality: Iraqi,
4. of xxx,
nationality: Iraqi,
Nos. 3 – 4, represented by
Mr. xxx and
Mrs. xxx,
Plaintiff,
authorized:
Regarding points 1-4: Lawyer Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
the Werra-Meißner district, represented by the district committee,
Schlossplatz 1, 37269 Eschwege,
Defendant,
because of asylum law
The Administrative Court of Kassel – 4th Chamber – through
Judge xxx
as rapporteur on May 5, 2022
decided:
The proceedings are discontinued.
The defendant shall bear the costs of the proceedings.
No court fees are charged.
REASONS
The rapporteur is called upon to make the decision in accordance with Section 87a Paragraph 1 Nos. 3 and 5, Paragraph 3 of the Administrative Court Procedure Act (VwGO).
Since the parties – the plaintiffs by letter from their attorney dated April 6, 2022, and the defendant by letter dated April 26, 2022 – have unanimously declared the proceedings settled, the proceedings are to be discontinued pursuant to Section 92 Paragraph 3 Sentence 1 of the Code of Administrative Court Procedure (VwGO), and the costs are to be decided upon pursuant to Section 161 Paragraph 2 Sentence 1 VwGO, taking into account the previous state of the proceedings and the merits of the case, at the court's discretion. As a rule, it is equitable, in accordance with the principle of Section 154 Paragraph 1 VwGO, to impose the costs on the party who would likely have lost had the event rendering the proceedings moot not occurred.
In this case, it is equitable to order the defendant to bear the costs of the proceedings.
The decision on costs is based on Section 161 Paragraph 3 of the Code of Administrative Court Procedure (VwGO). According to this provision, in cases under Section 75 VwGO, the costs are always borne by the defendant if the plaintiff could reasonably expect a decision before filing the lawsuit. This was the case here, as Section 75 VwGO applied.
A case under Section 75 Paragraph 1 of the Code of Administrative Court Procedure (VwGO) exists if a decision on an objection or an application for an administrative act has not been made on the merits within a reasonable period without sufficient cause. In such a case, an action is admissible, notwithstanding Section 68 VwGO. However, the action cannot be brought before the expiry of three months from the filing of the objection or the application for the administrative act, unless a shorter period is warranted due to special circumstances of the case (Section 75 Paragraph 2 VwGO).
In the present case, the plaintiffs submitted an application on December 18, 2020, to amend the residence permit requirement, which had not yet been decided upon by the plaintiffs' written submission of June 4, 2021, at the time the action was filed.
The defendant has not presented and substantiated – the case file was not submitted despite repeated requests – what specific circumstances prevented a decision on the application submitted on December 18, 2020 – if necessary, even by means of a corresponding rejection.
Insofar as the defendant argued in his written submission of August 17, 2021, that the review process of the plaintiff's application was delayed due to the large number of applications for the cancellation/revocation of the residence requirement received between December 2020 and March 2021, it has not been argued or substantiated to what extent the number of proceedings has changed compared to the usual number, such that this would result in an increased workload.
Insofar as the written submission also states that a final decision on the application is expected within one month, subject to the documents already requested by the plaintiff and any necessary official medical opinion, the court, lacking further submissions and the file, cannot conclude that the proceedings were not already ready for a decision based on the medical opinion from the Georg-August University of Göttingen dated December 3, 2020 (pp. 8-11 of the file) and the preliminary medical report from the University Medical Center Göttingen dated December 14, 2020 (pp. 12-14 of the file), which were submitted with the original application.
Insofar as the letter of November 18, 2021, stated that the plaintiffs had not submitted the requested documents, it is not apparent which specific documents the defendant still needed for the final decision or what else would have prevented a negative decision – as has now been made.
The procedure is free of court fees according to § 83 b AsylG.
Note:
This decision is final and cannot be appealed (§ 80 AsylG).
