Dismissal of the appeal against the rejection of the application for restoration of the deadline for payment of the advance payment of costs

Facts

The appellant [X.] had declared the facilitated naturalization null and void on May 22, 2008. He filed an appeal with the Federal Administrative Court on June 9, 2008. The Federal Administrative Court requested him on July 17, 2008, to pay an advance payment of costs by August 18, 2008, and threatened not to consider the appeal if the costs were not paid. Since the shipment was returned, the Federal Administrative Court did not consider the appeal on August 29, 2008. The appellant applied for restoration of the deadline on September 4, 2008, as he was in Kosovo during the period when the shipment was delivered and was not able to pay the advance payment of costs.

The Federal Administrative Court rejected the application for restoration, as the appellant had missed the deadline due to his own negligence. The appellant then requested the Federal Court to overturn the judgment of the Federal Administrative Court and approve the application for restoration.

Considerations

The Federal Court examined whether the restoration of a missed deadline is possible even after the conclusion of the proceedings. It found that Art. 24 para. 1 APA does not explicitly regulate this, but the case law of the Federal Court affirms it (BGE 85 II 145 p. 147; judgment H 44/05 of April 11, 2005, E. 1.2). The Federal Court decided that restoration can also be granted after the judgment has been pronounced and leads to the annulment of the judgment (judgment 2C_98/2008 of March 12, 2008, E. 1 with references).

The Federal Court further examined whether the service of the decision of July 17, 2008, was legally valid. It found that the service fiction according to Art. 20 para. 2bis APA only applies if the service of an official document could be expected with a certain probability and the addressee had to reckon with it. Since the appellant had been away from the address known to the authorities for an extended period during pending proceedings without ensuring that the correspondence sent to the previous address was forwarded to him, or notifying the authority of his new address, or appointing a representative to act on his behalf during his absence, he…