Insulting BFA submissions under Section 34(3) AVG: order penalties, permissible authority criticism, disciplinary law and separate review from an entry ban.
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 person challenging an immigration decision may identify the authority’s legal errors clearly. The wording of a written submission can still trigger a separate procedure. Section 34(3) AVG allows the authority to impose an order penalty of up to 726 euros on a person who uses insulting wording in a written submission.
Two levels therefore have to be separated: the substantive challenge to the entry ban and the response to the form of the submission. The order penalty does not decide the legality of the immigration decision by itself.
This article explains the concept of insulting wording, the special rule for officials and professional representatives, and the documents needed to review the substantive decision and the order penalty separately.
Answer one short question. The assessment shows which documents and which separation of issues matter first.
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For the first assessment, the exact wording, the person addressed and the authority response matter.
Set out the challenged sentences, their connection with the entry-ban decision and the specific legal errors. Strong legal criticism should identify the defect in the decision and avoid personal degradation.
Keep the transmitted version, the filing date and the authority response. The concrete wording and its context are central to the assessment.
Place the order penalty decision beside the immigration decision. Check the date, operative part, reasoning and appeal information for each document separately.
Check whether the person who wrote the submission is subject to disciplinary law. In that case, Section 34(4) AVG provides for a report to the disciplinary authority instead of an order penalty.
The wording of a submission answers a different question from the legality of an entry ban.
| Review level | Legal connection | Important documents |
|---|---|---|
| Immigration decision | Grounds against the entry ban, return decision or reasoning | Decision, service record, file and evidence concerning the personal situation |
| Wording of the submission | Section 34(3) AVG: insulting wording in a written submission | Original text, transmission, challenged passage and context |
| Order penalty | Up to 726 euros under Section 34(2) and (3) AVG | Penalty decision, service, reasoning and appeal information |
| Official or professional representative | Section 34(4) AVG: report to the disciplinary authority where disciplinary law applies | Role, power of attorney or official position and authority response |
Section 34 AVG is part of the rules on order and vexatious-proceedings penalties. Subsection 3 covers persons who use insulting wording in written submissions. The authority may impose the same order penalties that subsection 2 provides for disrupting an official act or violating proper conduct. The maximum amount stated there is 726 euros.
The concrete submission is decisive. The transmitted version, the challenged wording and the surrounding context must therefore be preserved. A later summary by the authority does not replace a review of the original text.
Section 34(3) AVG concerns the form of a written submission. This article does not analyse a vexatious-proceedings penalty under Section 35 AVG or a criminal defamation case. Those questions have their own requirements.
A party must be able to challenge a flawed decision. The submission may identify missing investigations, incomplete reasoning, an incorrect assessment of evidence or a disproportionate duration of the entry ban. These statements remain connected to the decision and its effects.
The risk of an order penalty increases when the submission targets individuals with degrading language and the substantive issue disappears. The challenged passage should be read together with the full paragraph. A pointed assessment may be understood differently when it explains a concrete error than when it is a personal attack without a connection to the case.
A clear structure helps in practice: state the finding in the decision, identify the legal objection, refer to the evidence and then set out the requested step. This makes it clear which wording serves the legal defence and which wording adds no further legal point.
Section 34(3) AVG addresses persons who write a written submission in insulting wording. The decision should therefore show to whom the submission is attributed. If a representative filed it, the role, authority and professional status need separate review.
Section 34(4) AVG contains a special rule for public officials and professional representatives who are subject to disciplinary law. No order penalty is imposed on them under that provision. Instead, the law provides for a report to the competent disciplinary authority.
Section 34(5) AVG also states that an order penalty does not exclude criminal prosecution for the same act. An administrative procedural penalty and criminal proceedings must therefore be kept conceptually separate.
The substantive appeal concerns the immigration decision. It may address the reasoning, risk assessment, proportionality or the treatment of personal circumstances. The order penalty, by contrast, is connected to the wording of a written submission.
Both documents should therefore be preserved in full. The immigration decision, the order penalty decision, proof of service and appeal information belong in the same file, but the deadlines and legal review for each document must be checked separately.
The existing article on reasoning defects in an entry-ban decision concerns the substantive level. For new evidence after release and a later application to lift or shorten the entry ban, see the article on Section 60 FPG after release.
The sequence keeps the substantive decision, wording and penalty decision apart.
Save the immigration decision and order penalty with proof of service.
Review the original text, attachments and transmission in the submitted form.
Consider wording, connection with the case, addressee and context together.
Review service and appeal information for each level on its own.
State errors, evidence and requests clearly and avoid personal attacks.
Key point: An order penalty concerning the form of a submission does not dispose of the substantive challenge to the entry ban. Each level needs its own documents and deadline review.
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Section 34(3) AVG refers to the same order penalties as subsection 2. The maximum amount stated there is 726 euros.
Strong legal criticism is not automatically insulting wording. The exact text, its connection with the case and the surrounding context must be assessed.
Section 34(4) AVG contains a special rule for professional representatives subject to disciplinary law. The provision calls for a report to the disciplinary authority instead of an order penalty.
The two decisions must be reviewed separately. The content, service and appeal information of each document determine the next review.
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