Non-official expert in an entry ban case: expertise and timing of a challenge

Section 53(1) AVG distinguishes official experts from other experts. Section 7 AVG applies to official experts. Other experts are excluded if one of the grounds in section 7(1), items 1, 2 or 4 AVG applies. A party may also challenge them if credible circumstances cast doubt on expertise or impartiality.

The classification turns on whether the person is an official expert or another expert. The fact that an authority issued the instructions does not answer that question on its own. Check the appointment and the expert's role in the file. Concerns about the person handling the decision are separate from a challenge to an expert.

Explain why the expert's knowledge may not match the particular question assigned. Set out the task, the relevant field and the available information about the person's training or professional experience. Such records can support a concern, but they do not automatically require the expert to be removed.

A different conclusion or an unfavourable report does not, by itself, show a lack of expertise. Identify the assumption, method or factual basis you dispute. If the issue is what identity evidence proves, the separate guide to identity deception in immigration proceedings addresses that question.

Section 53(1) AVG names the period before the expert is examined as the ordinary point for a challenge. It sets no fixed number of calendar days. The wording instead refers to a procedural step.

Receipt of a written report does not by itself show whether the expert has been examined for this purpose. Check the notice, minutes and procedural record before assessing the timing. Once the reason is known, organise the challenge around that reason and the next procedural step.

After the examination, section 53(1) AVG allows a challenge only if the party credibly shows either that the reason was not known earlier or that an insurmountable obstacle prevented it from being raised in time. Saying only that the challenge was prepared later does not address that statutory condition.

Set out the sequence: when did the reason become apparent, how did you learn of it and what obstacle prevented an earlier challenge? Keep records that support those dates. Whether the explanation is sufficient depends on the circumstances that can be established.

Under section 53(2) AVG, the decision on a challenge is made by procedural order (Verfahrensanordnung). The provision identifies the form of the decision. It does not predict whether a particular application will succeed.

Keep the challenge, supporting records and procedural chronology distinct. If the case also concerns what evidence the BVwG should take, that issue needs its own explanation. The guide to evidence applications before the BVwG addresses that separate step. To review the decision, minutes and evidence already in the file, see file inspection in entry ban proceedings.