Publication
EMARK - JICRA - GICRA
Publication
EMARK - JICRA - GICRA
Decision
2003 / 1, English Summary
[Original decision] [Definition of Terms]
Art. 17 para. 3 Asylum Law, Art. 7 paras. 3 and 5 Asylum Ordinance 1: guardian ad litem for unaccompanied under-age asylum seekers; required level of legal knowledge
The guardian ad litem assigned to an unaccompanied, under-aged asylum seeker before a first hearing is required to know the law. The required level of legal knowledge is not judged by a strict standard; however, the guardian ad litem must have a sufficient basic knowledge of the asylum proceedings.
Decision 2003 / 2, English Summary
[Original decision] [Definition of Terms]
Art. 17 para. 2 Asylum Law, Art. 6 Asylum Ordinance 1: notion of sexual persecution
Persecution is sexual in the sense of Art. 6 Asylum Ordinance 1 if the victim is affected by sexual violence or if the persecution is aimed at the sexual identity of the victim.
The provision that in case of concrete indications of sexual persecution the asylum seeker is to be heard/ interviewed by a person of the same sex, has to be observed ex officio.
Decision 2003 / 3, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 6 Law on Foreign Nationals: exclusion from temporary admission on the grounds of violation or serious endangerment of public order and safety.
If an asylum seeker seriously endangers public order and safety, Art. 14a para. 6 Law on Foreign Nationals can be applied, even if the related criminal proceeding is still pending.
Decision 2003 / 4, English Summary
[Original decision] [Definition of Terms]
Art. 14a paras. 1 to 4 Law on Foreign Nationals: forcible return of members of the Turkish minority in Kosovo
The Turkish minority in Kosovo does not, generally, encounter special harassment or discrimination by the Albanian majority. Therefore, forcible return is, in principal, reasonable for persons belonging to this minority.
Decision 2003 / 5, English Summary
[Original decision] [Definition of Terms]
Art. 63 para. 1 and Art. 64 para. 1 Law on Administrative Procedure; Art. 4a Ordinance on Procedural Costs in the Administrative Procedure:
Despite the fact that his appeal was initially rejected, the appellant can be exempted from procedural costs and awarded compensation for lawyer’s fees if an irregularity, which he correctly criticised, has subsequently been cured in the course of the proceedings.
Decision 2003 / 6, English Summary
[Original decision] [Definition of Terms]
Art. 111 para. 2 (a) Asylum Law:
According to the principle of good faith, a request for a reinstatement of appeal proceedings that have been removed from the calendar of the AAC due to a loss of purpose can only be made within a reasonable time-limit.
Decision 2003 / 7, English Summary
[Original decision] [Definition of Terms]
Art. 29 paras. 1 and 2 Federal Constitution, Art. 44 in combination with Art. 5 para. 1 (b) Law on Administrative Procedure:
The FOR is not obliged to deal with a request for review which is not sufficiently substantiated. The denial by the FOR of a constitutional claim with respect to the treatment of a request for review in a particular case is subject to appeal to the AAC.
Decision 2003 / 8, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum Law: Ethnic discrimination in military service as persecution; chain of temporal causality between the persecution and the leaving of the country.
Military service is illegitimate and therefore constitutes persecution in the sense of Art. 3 Asylum Law if it involves systematically discriminatory and particularly inhumane measures.
If a person subject to persecution lived in a part of Bosnia and Herzegovina, which until the end of the civil war could not be considered as a domestic alternative to flight because effective protection was not available, the stay in that part of the country cannot constitute a breach in the chain of temporal causality between the time of persecution and the time of leaving of the country (specification of precedent EMARK-JICRA-GICRA 2002 n. 2.; cf. also EMARK-JICRA-GICRA 1999 n. 7).
Decision 2003 / 9, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum Law: relevance of belonging to the Syrian Orthodox community in Turkey.
According to the current situation, the fact that one is a member of the Syrian Orthodox community in Istanbul does not, in itself, justify the granting of refugee status or asylum to persons who have always lived there.
Decision 2003 / 10, English Summary
[Original decision] [Definition of Terms]
After the international military intervention of October 2001, the Taliban lost their quasi-state power (cf. EMARK-JICRA-GICRA 1997 n. 6). Therefore, persecution by the Taliban is, in principle, no longer relevant as far as the granting of refugee status is concerned.
This decision extends to the situation in Afghanistan, especially regarding the differences between the town of Kabul and the other regions of the country: Because of the comparatively favourable situation in Kabul, the forcible return to that town can, under certain conditions, be considered as reasonable (in particular if there are family members or relations who are able to provide support and if accommodation is ensured).
Decision 2003 / 11, English Summary
[Original decision] [Definition of Terms]
Art. 63 Asylum Law, Art. 1 C Geneva Convention: revocation of asylum; revocation of refugee status.
1. The prerequisite for the revocation of asylum because of especially reprehensible criminal offences in the sense of Art. 63 para. 2 Asylum Law constitutes a qualified unworthiness for asylum, i. e., a more serious criminal offence than that which would be sufficient to declare somebody undeserving of asylum according to Art. 53 Asylum Law. In the present case, asylum was revoked because of a conviction of four years imprisonment for, inter alia, armed robbery.
2. There is no legal basis for the revocation of refugee status on the grounds that the person in question was subsequently declared undeserving of asylum. This is also the case if the appellant only had derivative and not original refugee status. A revocation of refugee status is only possible on the grounds stated in Art. 1 C Geneva Convention. The commission of criminal offences in the host country does not fall within these grounds.
Decision 2003 / 12, English Summary
[Original decision] [Definition of Terms]
Art. 44 paras. 3 to 5 Asylum Law: notion of a final decision in case of revocation of a temporary admission; application of EMARK-JICRA-GICRA 2001 n. 20 (confirmation).
The granting of temporary admission during the ordinary asylum proceedings does not constitute a final decision in the matter of forcible return. Therefore, before revoking a temporary admission, the FOR has to examine, ex officio, if an asylum seeker who applied for asylum more than four years prior to the revocation meets the prerequisites for a serious personal emergency situation.
Decision 2003 / 13, English Summary
[Original decision] [Definition of Terms]
The AAC is only obliged to make additional investigations concerning the facts of a case or to examine further legal questions ex officio if certain indications from the file or the appeal give reasonable cause therefore.
Decision 2003 / 14, English Summary
[Original decision] [Definition of Terms]
Proof by documents does not only encompass written documents but also other reproductions which depict facts, persons or objects by photography, film, sound storage medium or other means, as for instance electronic data files. Therefore, a linguistic analysis of the origin of the asylum seeker (LINGUA) is a document.
Decision 2003 / 15, English Summary
[Original decision] [Definition of Terms]
Art 52 Law on Administrative Procedure in combination with Art. 110 paras. 1 and 3 Asylum Law.
A notice of appeal does not fulfil legal requirements if it does not contain a pertinent statement of reasons that address the fundamental points of the FOR decision against which the appeal is lodged.
Decision 2003 / 16, English Summary
[Original decision] [Definition of Terms]
Art. 52 Law on Administrative Procedure.
If a notice of appeal has not been signed by the appellant, this deficiency can be corrected by an original signature on another letter by the appellant within the set time-limit.
Decision 2003 / 17, English Summary
[Original decision] [Definition of Terms]
The fact that an appellant does not allege having been raped until his appeal for review of an FOR- or AAC-decision can be explained by feelings of shame and guilt and as a mechanism of self-protection by the victim. In such a case, the appeal for review cannot be dismissed solely for the reason that the allegation of having been raped could have been made at an earlier stage of proceedings.
Decision 2003 / 18, English Summary
[Original decision] [Definition of Terms]
Arts. 18 and 32 Asylum Law: specification of the notion of persecution in case of inadmissibility of applications for asylum.
The broad notion of persecution (cf. EMARK-JICRA-GICRA 1999 n. 17) that is applied when examining the existence of signs of persecution is restricted to the extent that it only comprises feared or suffered prejudice that is man-made; all other obstacles to expulsion are excluded (distinction from earlier case-law).
Decision 2003 / 19, English Summary
[Original decision] [Definition of Terms]
Only those signs of persecution that can be recognized as being implausible on first sight can be declared as fully unfounded in the sense of Art. 32 para. 2 (a) Asylum Law. It is not admissible to declare signs of persecution, in a broad sense, as fully unfounded based on the reason that they are not relevant within the meaning of Art. 3 Asylum Law (cf. EMARK-JICRA-GICRA 2003 n. 20).
Decision 2003 / 20, English Summary
[Original decision] [Definition of Terms]
Only those signs of persecution that can be recognized as being implausible on first sight can be declared as fully unfounded in the sense of Art. 32 para. 2 (a) Asylum Law. It is not admissible to declare signs of persecution, in a broad sense, as fully unfounded based on the reason that they are not relevant within the meaning of Art. 3 Asylum Law (cf. EMARK-JICRA-GICRA 2003 n. 19).
Decision 2003 / 21, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (c) Asylum Law: inadmissibility of an application for asylum because of violation of the duty to co-operate with the authorities.
The right to be heard has to be granted mandatorily if a decision of non-admissibility of an asylum application is planned.
A grave violation of the duty to co-operate with the authorities only exists in cases where, through such action, a specific and concrete proceeding is hindered (confirmation of precedents EMARK-JICRA_GICRA 2001 n. 19, 2000 n.8, 1994 n. 15). The sole fact that the applicant was not present for a certain time at his assigned place of residence is not sufficient.
Decision 2003 / 22, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (c) Asylum Law: inadmissibility of an application for asylum because of grave and culpable violation of the duty to co-operate with the authorities.
The failure to answer a summons to appear for an interview constitutes a grave and culpable violation of the duty to co-operate with the authorities (cf. EMARK-JICRA-GICRA 2002 n. 8).
Decision 2003 / 23, English Summary
[Original decision] [Definition of Terms]
Art. 64 paras. 1 (a) and 2 Asylum Law.
Even after a stay abroad for a duration of more than three years, the claim for asylum does not expire if a refugee can, in good faith, rely on the fact that the FOR had implicitly prolonged this time-limit by unconditionally renewing the travel documents.
Decision 2003 / 24, English Summary
[Original decision] [Definition of Terms]
Art. 44 para. 2 Asylum Law, Art, 14a para. 4, Law on Foreign Nationals: Examination of the reasonability of forcible return, first with regard to medical grounds and, second, in view of the entire personal circumstances.
1. As a rule, medical grounds alone only make a forcible return seem unreasonable if a general or urgent medical treatment that is essential for a dignified and decent existence is not available in the country of origin.
2. Medical grounds that, as such, would not make forcible return seem unreasonable constitute an aspect that must be considered when balancing the humanitarian aspects and the public interest in the forcible return.
Decision 2003 / 25, English Summary
[Original decision] [Definition of Terms]
Art. 55 para. 3 Federal constitution; Art. 2 Civil Code
According to the principle of good faith, a request for a resumption of appeal proceedings that have been removed from the calendar of the AAC because the appellant lost interest in the proceedings can only be validly made within a reasonable time-limit.
Decision 2003 / 26, English Summary
[Original decision] [Definition of Terms]
Art. 30 para. 1 Federal Constitution, Art. 10 Law on Administrative Procedure, Art. 22 Justice Administration Law, Art. 26 AAC Ordinance.
The fact that an AAC judge denied a request for legal aid, in his function as examining magistrate, on the grounds that the appeal had no chance of success, does not, in itself, warrant a challenge for prejudice against such judge.
Decision 2003 / 27, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (b) Asylum Law: inadmissibility of an application for asylum; fraudulent misrepresentation of identity.
The mere fact that an asylum seeker appeared under another name in another country before applying for asylum in Switzerland does not constitute sufficient evidence that he fraudulently misrepresented his true identity towards the Swiss authorities (specification of precedent EMARK-JICRA-GICRA 1996 n. 32).
Decision 2003 / 28, English Summary
[Original decision] [Definition of Terms]
Arts. 3 and 54 Asylum Law: refugee status and post-flight reasons for persecution.
Asylum seekers from Libya whose application for asylum has been denied are not subjected to persecution in the sense of Art. 3 Asylum Law when returning to Libya from European countries merely because of their stay in a western country.
Decision 2003 / 29, English Summary
[Original decision] [Definition of Terms]
Art 14a para. 4 Law on Foreign Nationals: Reasonableness of forcible return.
Forcible return to the Ivory Coast is reasonable in principle.
Decision 2003 / 30, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals; analysis of the present situation in the Afghan province of Ghazni and in the so-called Hazarajat; examination of the reasonableness of forcible return.
1. Based on a description of the situation regarding safety, food and medical supplies in the Afghan province of Ghazni, as well as the traditional area of settlement of the Hazara, the so-called “Hazarajat”, forcible return to these areas is not reasonable.
2. A reasonable alternative to flight in Kabul of an asylum seeker originally from the Hazarajat requires the existence of family members or other relations that can give support in that town and that accommodation is ensured.
