Section 35 AVG in BFA proceedings: vexatious conduct, incorrect statements intended to delay and the distinction from an order penalty.
Mag. Mirela Saric
Attorney at law · German and BCS
Mirela Saric assists clients in immigration matters with a clear structure: review the decision, secure deadlines, define the strategy and act quickly. She advises in German and Bosnian/Croatian/Serbian.
A vexatious-proceedings penalty under Section 35 AVG is a separate procedural sanction. The authority may impose up to 726 euros where a person plainly uses the authority’s activity vexatiously or makes incorrect statements with the intention of delaying the matter.
An unsuccessful appeal is not enough by itself. The relevant question is which concrete conduct the decision describes and whether it fits Section 35 AVG. The penalty must also be kept separate from the substantive entry-ban assessment and from an order penalty for insulting wording.
This article explains the two statutory grounds and the documents that matter when reviewing a BFA decision.
Answer one short question. The assessment shows which documents and which statutory ground should be reviewed first.
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For the first assessment, read the operative part, reasoning and submissions relied on by the authority.
Arrange the submissions, applications and authority responses in chronological order. Check which conduct the authority treats as plainly vexatious use of its activity and whether the decision describes that connection specifically.
Compare the challenged statement with the file and documents available when it was made. Review the alleged inaccuracy separately from the connection the authority draws to an intention to delay the matter.
Check whether the decision identifies a Section 35 ground beyond the mere lack of success. Keep the substantive arguments in the appeal and the reasoning for the penalty as separate documents.
Place the challenged submission and the authority decision beside the immigration decision. Check whether the authority is assessing the form of the submission or the purpose and course of the proceedings.
The authority should keep a Section 35 allegation separate from other responses and from the entry ban itself.
| Review level | Legal connection | Important documents |
|---|---|---|
| Vexatious use of the authority | Section 35 AVG: plainly vexatious use of the authority’s activity | Penalty decision, submissions, applications and authority responses |
| Incorrect statements causing delay | Section 35 AVG: incorrect statements made with an intention to delay | Original statement, documents, file record and chronology |
| Insulting wording | Section 34(3) AVG: wording of a written submission | Submission as filed, challenged passage and order-penalty decision |
| Entry ban | Immigration decision, for example under Section 53 FPG | Decision, service, risk assessment and personal evidence |
Section 35 AVG sets out two statutory grounds. The authority may impose a vexatious-proceedings penalty where someone plainly uses the authority’s activity vexatiously or makes incorrect statements with the intention of delaying the matter. The maximum amount is 726 euros.
The exact wording of the penalty decision is therefore the starting point. It should show which conduct is challenged, which submission or statement is involved and how the authority connects it with Section 35 AVG. A general disagreement with a person’s case does not replace a review of the concrete conduct.
The immigration decision remains a separate issue. The article on the right to be heard before the BFA explains why the adverse facts and the person’s response should be considered separately.
The phrase “plainly vexatious” requires a review of the concrete conduct. A person may challenge a decision, repeat an argument or seek a different legal assessment without automatically incurring a penalty. An unsuccessful appeal is not, by itself, proof of vexatious use of the procedure.
The submissions, the procedural history and the reasoning of the penalty decision therefore need to be read together. A recognisable legal concern must be distinguished from an allegation that the authority’s activity was used plainly without a legitimate procedural purpose.
The article on an appeal against an entry ban concerns the immigration decision. Its prospects and the requirements for a Section 35 penalty are separate questions.
The second ground concerns incorrect statements made with the intention of delaying the matter. Two issues must therefore be kept apart: whether the statement was incorrect and what supports the authority’s conclusion that it was made to delay the proceedings.
The filed version, its attachments and the record available at the time belong together for this review. A later correction may matter to the chronology, but it does not by itself establish why the original statement was made. The connection must be assessed from the decision and the procedural record.
An unclear or incomplete statement should not automatically be described as an intentional delay. A sound review needs the exact wording, the timing and the authority’s reasoning.
Section 34(3) AVG concerns insulting wording in a written submission. Section 35 AVG concerns plainly vexatious use of the authority’s activity or incorrect statements made with an intention to delay. Both provisions appear in the same part of the AVG, but they address different conduct.
The article on an order penalty for an insulting BFA submission addresses the other review question. The key issue is whether the authority is criticising the wording itself or the purpose and course of the proceedings.
The entry-ban decision is also not disposed of by either penalty. Preserve the operative part, reasoning, service record and appeal information for each decision separately.
Start with the complete vexatious-proceedings penalty decision and the underlying BFA decision. Add the submissions, attachments, proof of service and authority responses referred to in the reasoning. This allows the allegation to be compared with the actual course of the proceedings.
Then mark three points: the statutory ground, the concrete conduct and the legal consequence drawn from it. If several decisions were served, arrange them by date and proceeding. The appeal information for each document must be read on its own terms.
The legal-aid article on proceedings before the Federal Administrative Court addresses how vexatiousness and lack of prospects can affect legal aid. That is a funding question, not a substitute for reviewing a Section 35 decision.
The sequence keeps the penalty, entry ban and possible order penalty apart.
Keep the penalty, entry-ban and other decisions with proof of service.
Identify whether the decision alleges vexatious use or incorrect statements causing delay.
Review the challenged statements, attachments and chronology together.
Keep the wording of a submission and the legality of the entry ban as separate issues.
Record service, legal remedy and next step for each decision separately.
Key point: A vexatious-proceedings penalty and an entry ban are different decisions. A dismissed appeal is not automatically a Section 35 AVG penalty.
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No. The dismissal or lack of success is not enough automatically. The decision must be reviewed for a concrete ground under Section 35 AVG.
Section 35 AVG states a maximum of 726 euros. Whether a penalty is imposed and at what amount depends on the decision and the facts of the case.
No. Insulting wording in a written submission belongs to the separate review under Section 34(3) AVG. Section 35 AVG addresses different grounds.
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