Publication
EMARK - JICRA - GICRA
Publication
EMARK - JICRA - GICRA
Decision
2004 / 1, English Summary
[Original decision] [Definition of Terms]
1. The fact that a presumable torture victim initially does not mention the details of the torture he suffered out of shame - in casu burns to the genitals - and only substantiates them during the appeal proceedings does not indicate that these allegations are not plausible.
2. In order to demonstrate a justified fear of persecution in the sense of Art. 3 Asylum Law, sufficiently objective indications for an actual threat have to be pointed out. If the asylum seeker has been subject to persecution by the state before, the justification of his fear may not be judged solely by an objective standard. In this case, the previous experiences of this person and his or her knowledge of the consequences in comparable cases have to be taken into account (confirmation of precedents EMARK-JICRA-GICRA 1998 n. 4; 1997 n. 10; 1994 n. 24).
Decision 2004 / 2, English Summary
[Original decision] [Definition of Terms]
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 2004 / 3, English Summary
[Original decision] [Definition of Terms]
1. The Turkish Hizbollah at no time constituted a quasi-state power. Therefore, this group cannot be considered as the originator of state persecution.
2. In the year 2000 the Hizbollah was practically destroyed by the repressive action of the Turkish state. The question of whether the Turkish state incited, approved, supported or condoned the crimes by the Hizbollah against politically active Kurds in the nineties, and therefore would have to be considered as responsible in the sense of indirect persecution can be left unanswered, although there are indications for a joint responsibility of the Turkish state.
Decision 2004 / 4, English Summary
[Original decision] [Definition of Terms]
If a linguistic analysis of the origin of the asylum seeker (LINGUA) does not conclusively show that such person does not originate from the country of which he claims to be a national, he cannot be accused of having fraudulently misrepresented his identity in the sense of Art. 32 para 2 (b) Asylum Law (case of an Angolan “regressado” who allegedly lived in the Democratic Republic of Congo for years).
Decision 2004 / 5, English Summary
[Original decision] [Definition of Terms]
If an asylum seeker who originates from a country that has been declared a “safe country” by the Swiss Federal Council claims that he was persecuted by private persons, and this claim does not seem implausible (or thus unfounded) on first sight, his asylum application has to be examined on its merits. In order to examine the question of whether this person has a domestic alternative to flight in his country of origin, his asylum application must also be examined on its merits.
Decision 2004 / 6, English Summary
[Original decision] [Definition of Terms]
1. Under very exceptional circumstances, the expulsion of a person suffering from AIDS in the terminal stage constitutes a violation of Art. 3 EHRC (summary of the precedents of the European Court of Human Rights).
2. In this particular case, the forcible return to Guinea is considered as being consistent with Art. 3 EHRC based on the following factors: the appellant has not yet developed full-blown AIDS, he can rely on support by family members in his country of origin and sufficient medical treatment is available there.
Decision 2004 / 7, English Summary
[Original decision] [Definition of Terms]
1. The expulsion of a HIV-infected person is consistent with Art. 3 EHRC as long as this person has not reached the terminal phase of AIDS (cf. EMARK-JICRA-GICRA 2004 n. 6).
2. Furthermore, the classification and the means of treating HIV and AIDS are elaborated in this decision.
3. When assessing the reasonableness of forcible return, it is not only the stage of a HIV-infection (A - C) that has to be taken into account but also the specific situation in the country of origin of the applicant; in particular, the available medical treatment, the safety situation and his personal environment. Therefore, according to the specific circumstances, forcible return may already seem unreasonable when the HIV stage B3 or even B2 has been reached, while on the other hand, in the stage C, forcible return is not necessarily unreasonable.
Decision 2004 / 8, English Summary
[Original decision] [Definition of Terms]
In this decision, the situation in the south-east provinces of Turkey is newly assessed. The forcible return of rejected asylum seekers to these regions can no longer be qualified as being generally unreasonable (cf. EMARK-JICRA-GICRA 2000 n. 13, with reference to previous assessments of the situation).
Decision 2004 / 9, English Summary
[Original decision] [Definition of Terms]
1. In this specific case, pro bono legal services in the proceedings of the first instance before the FOR are regarded as being necessary because the FOR did not assign the unaccompanied under-age asylum seeker a guardian ad litem in a timely manner.
2. Persons of full age living in Switzerland may not exercise parental care over their under-age brother or sister applying for asylum. Therefore, in this constellation, an under-age asylum seeker has to be regarded as being legally unaccompanied.
Decision 2004 / 10, English Summary
[Original decision] [Definition of Terms]
If the expulsion of an asylum seeker on account of a criminal offence has been determined by a criminal court, the asylum authorities are no longer competent to decide on the issue of expulsion and forcible return of that person.
Decision 2004 / 11, English Summary
[Original decision] [Definition of Terms]
The delinquent appellant is not excluded from temporary admission according to the resolution of the Federal Council of 1 March 2000 concerning the “Humanitarian Action 2000” based on the weighing of the gravity of the committed crimes (two non-severe traffic offences) and the degree of integration, especially in light of his long stay in Switzerland and his otherwise good behaviour.
Decision 2004 / 12, English Summary
[Original decision] [Definition of Terms]
According to the principle of family unity, temporary admission of one family member leads to the temporary admission of the whole family (cf. EMARK-JICRA-GICRA 1995 n. 24). An exception to this rule is justified in the case of spouses who, de facto, live separately.
Decision 2004 / 13, English Summary
[Original decision] [Definition of Terms]
1. When a request for legal aid is rejected on the grounds that the appeal for which it has been requested has no chance of success, the appellant is, as a rule, warned that his appeal will be declared inadmissible in case the advance on costs is not paid; this shall be the case despite any further requests for legal aid and there shall be no extension of the time limit for paying the advance on costs.
2. When making such a further application for legal aid, an appellant cannot, according to the principle of good faith, derive any benefit from the contention that he considers his application as granted if no contrary notice is given. Furthermore, the time limit for paying an advance on costs is not implicitly extended.
Decision 2004 / 14, English Summary
[Original decision] [Definition of Terms]
1. First, the discussion on the relevance of female genital mutilation in asylum matters is described.
2. The forcible return of a rejected female asylum seeker to a country in which she faces a serious threat of genital mutilation is not compatible with Art. 3 EHRC; in such cases, the forcible return is, in any case, not lawful.
3. The question of the necessity to adjust the position in the precedents of the AAC, according to which there are no quasi-state bodies in Somalia who may act as persecutors in the sense of the Swiss asylum law (cf. EMARK-JICRA-GICRA 1996 n. 18 and 1995 n. 25) can be left undecided.
Decision 2004 / 15, English Summary
[Original decision] [Definition of Terms]
1. Formal prerequisites for an application for restitution of a time-limit.
2. An asylum seeker cannot be held responsible for not observing the time limit for filing an appeal if he was staying outside the assigned accommodation with appropriate authorisation at the time that the decision of the FOR was delivered and, therefore, could not take note of the decision in time. Furthermore, in such case, the obligation to collaborate according to Art. 8 para. 3 Asylum Law is not violated.
Decision 2004 / 16, English Summary
[Original decision] [Definition of Terms]
1. A belated opinion by the FOR has to be considered if its substance seems decisive for the case.
2. In the present case, the FOR-decision is quashed on the grounds of an incomplete ascertainment of the legally relevant facts: a warrant for arrest for support of illegal organisations, which is on file, was overlooked.
Decision 2004 / 17, English Summary
[Original decision] [Definition of Terms]
1. The right to be heard includes, inter alia, the right of the parties to be heard before a negative decision is issued as well as the right to offer evidence concerning relevant facts and to request the evidence being admitted.
2. The right to be heard does not prohibit the authority from excluding offered evidence due to an anticipatory evaluation if this evidence is manifestly not qualified to lead to a different decision.
3. In this case, the right to be heard was violated because the applicant was not given the opportunity to give his opinion on the evidentiary value of the offered evidence and the FOR did not give the reasons for excluding such evidence.
Decision 2004 / 18, English Summary
[Original decision] [Definition of Terms]
In the case of a person who is recognized as being stateless and who has a corresponding travel document, the country where that person resided last can not be considered as a third country. Therefore, an immediate expulsion to this country, based on Art. 42 para. 2 Asylum Law, is not lawful.
Decision 2004 / 19, English Summary
[Original decision] [Definition of Terms]
On the basis of Art. 42 para. 2 Asylum Law, the FOR is competent to withdraw the suspensive effect of an appeal where an immediate expulsion to the country of origin has been ordered. The ruling of Art. 112 paras 1 and 2 Asylum Law (new version coming into force on 1 April 2004) is - beyond the actual wording - also applicable to cases of expulsion to the country of origin in the airport proceedings (filling of a legal gap).
Decision 2004 / 20, English Summary
[Original decision] [Definition of Terms]
1. When deciding on the permission to enter Switzerland for a person seeking asylum from abroad, factors in addition to the endangerment according to Art. 3 Asylum Law must be considered. These include the following: closeness of ties to Switzerland and to other countries, possibility of protection by another country, practicability and reasonability of demanding protection by another country and prospective chances of integration in Switzerland (confirmation of precedents; cf. EMARK-JICRA-GICRA 1997 n. 15).
2. In the present case, concerning an application for asylum from Colombia, the AAC concludes that the applicant may find protection in other South American countries, namely the neighbouring states of Colombia.
Decision 2004 / 21, English Summary
[Original decision] [Definition of Terms]
1. The fact that a person who has applied for asylum in Switzerland is staying in a third country does not, necessarily, signify that it is reasonable for such person to seek asylum in that country. In such cases, the criteria for the “reasonableness” of finding refuge in that country, or another third country, have to be examined and weighed against the closeness of the ties the person in question has to Switzerland.
2. The question of whether a person has close ties to Switzerland in the sense of
Art. 52 Asylum Law does not correspond to the criteria of Art. 51 Asylum Law. Therefore, the fact that members of the nuclear family have already obtained refugee status in Switzerland is not a prerequisite for the admission of an asylum application from abroad.
3. The sole fact of having participated in a hunger strike, which was initiated by extremist organisations, does not justify a refusal of asylum pursuant to Art. 53 Asylum Law.
Decision 2004 / 22, English Summary
[Original decision] [Definition of Terms]
1. When examining evidence of persecution in the sense of Art. 32 para. 2 (a) Asylum Law, a low standard of proof is to be applied. If a summary examination yields concrete indications of possible man-made prejudice by state authorities or private persons, the FOR must declare the asylum application in question admissible, and it must undertake a substantive examination thereof.
2. The current situation of Eritrean deserters calls for a detailed analysis of the possible risks involved in case of their return to Eritrea. This analysis exceeds the scope of a prima facie examination of evidence of persecution as it is done when deciding on the admissibility of an asylum application.
3. In a decision of non-admissibility according to Art. 32 para. 2 (a) Asylum Law, a denial of the existence of evidence of persecution that is based solely on the argument that the allegations of the asylum seeker lack relevance with regard to Art. 3 Asylum Law indicates that an overly narrow notion of persecution has been applied.
Decision 2004 / 23, English Summary
[Original decision] [Definition of Terms]
Art. 11 para. 3 Law on Administrative Procedure is also applicable to representatives appointed by law. The guardian ad litem for an under-age asylum seeker is such a representative appointed by law.
Decision 2004 / 24, English Summary
[Original decision] [Definition of Terms]
Due to the current political situation in Afghanistan, a former functionary of the communist government in Afghanistan, who did not participate in police or military actions that might be connected with violations of human rights and did not particularly expose himself in political matters, does not face a “relevant” risk as far as the granting of refugee status is concerned. The same is true for an educated woman who previously worked as a teacher.
Decision 2004 / 25, English Summary
[Original decision] [Definition of Terms]
1. The time-limit established by Art. 108a Asylum Law of five workdays for filing an appeal against a decision by the FOR declaring an asylum application inadmissible, applies to the FOR-decision as a whole, both as far as the inadmissibility of the asylum application and the expulsion from Switzerland and forcible return are concerned.
2. The time-limit of five workdays established by Art. 108a Asylum Law does not violate the right to an effective remedy according to Art. 13 EHRC.
Decision 2004 / 26, English Summary
[Original decision] [Definition of Terms]
Forcible return to the region Senafe/Debub in the frontier area of Eritrea and Ethiopia, which is particularly affected by war, may be unreasonable due to the humanitarian situation, in particular if small children are concerned.
Decision 2004 / 27, English Summary
[Original decision] [Definition of Terms]
If the legal time limit for the treating of an asylum application has been considerably exceeded without the fault of the asylum seeker, a one-day time-limit for leaving the country after a decision of inadmissibility of the asylum application violates the principle of commensurability.
Decision 2004 / 28, English Summary
[Original decision] [Definition of Terms]
1. In order to examine the credibility of the alleged origin of asylum seekers from Liberia, the FOR carries out specific interviews concerning their general knowledge about Liberia. The records of such interviews constitute evidence in the asylum proceedings. Denying asylum seekers access to detailed records of the latter is justified by the public interest in protecting secrecy; however, the substantive content of the records has to be disclosed.
2. Asylum seekers must be informed about wrong or insufficient answers they gave during the specific interview in sufficient detail such that they will be able to raise concrete objections.
3. The right of an asylum seeker to be heard, includes the right to have his objections to the specific interview treated in an unprejudiced manner. Correct answers concerning the country of origin given in the interview must be considered appropriately.
Decision 2004 / 29, English Summary
[Original decision] [Definition of Terms]
1. According to Art. 16 para. 2 Asylum Law the FOR as a rule is required to draft its decisions in the official language of the place of residence of the asylum seeker. If the decision is drafted in another language, suitable corrective measures (e.g., translation into a language the asylum seeker can understand) must be taken in order to guarantee the right to an effective remedy and the right to a fair trial.
2. If, in a specific case, the FOR has not taken any suitable corrective measures and has not made up for this omission during the appeal proceedings, the FOR-decision must be quashed on appeal. However, the decision will not be quashed if it is apparent from the written appeal that the asylum seeker has sufficiently understood the decision, or if he has had a professional legal representative.
Decision 2004 / 30, English Summary
[Original decision] [Definition of Terms]
According to Art. 17 para. 3 Asylum Law, an under-age asylum seeker must be assigned a guardian ad litem for the asylum proceedings. If the statement of age of an asylum seeker who alleges being under-age seems doubtful, it is lawful to decide upon the credibility of the alleged age before the detailed hearing concerning the reasons for seeking asylum and without assigning a guardian ad litem.
Decision 2004 / 31, English Summary
[Original decision] [Definition of Terms]
1. The notification by a medical specialist concerning the determination of age of an asylum seeker by radiographic examination of the bones has to comply with certain minimal prerequisites in order to meet the standard of proof required by Art. 32 para. 2 (b) Asylum Law.
2. The notification, with sufficient information therein, has to be disclosed to the asylum seeker when he is granted the right to be heard.
Decision 2004 / 32, English Summary
[Original decision] [Definition of Terms]
In this decision, the AAC updates its analysis of the situation in Angola and newly evaluates the general security and humanitarian situation in this country. Based on this new assessment, the AAC concludes that forcible return to the provinces of Cabinda, Uige, Malanje, Lunda Norte, Lunda Sul, Bié, Moxico and Cuando Cubango is, in general, not reasonable. On the other hand forcible return to easily accessible towns in the provinces of Cunene, Huila, Namibe, Benguela, Huambo, Cuanza Sul, Cuanza Norte, Bengo and Zaïre is deemed reasonable under certain circumstances.
Decision 2004 / 33, English Summary
[Original decision] [Definition of Terms]
In this decision, the AAC newly analyzes the general situation in the Democratic Republic of Congo. Under certain favourable circumstances, forcible return to the capital Kinshasa or other towns in the western part of the country that have an airport is reasonable. The relevant criteria that are to be applied when assessing the reasonableness of return to the Democratic Republic of Congo are elaborated in the decision.
Decision 2004 / 34, English Summary
[Original decision] [Definition of Terms]
1. The standard of proof that is to be applied when examining evidence of persecution in the sense of Art. 32 para. 2 (a) Asylum Law is lower than the standard set out in Art. 7 Asylum Law (cf. EMARK-JICRA-GICRA 2004 n. 22).
2. When examining indications for persecution in the sense of Art. 32 para. 2 (a) Asylum Law, the summary character of the questioning at the reception centre and the minor age of asylum seekers must be especially taken into account. If there are only a few contradictions in their allegations, these should be focussed on with reserve.
Decision 2004 / 35, English Summary
[Original decision] [Definition of Terms]
A decision of inadmissibility of an asylum application according to Art. 34 para. 2 Asylum Law may not be based on the argument that the asylum seeker has a domestic alternative to flight. In this specific case, the FOR concluded that the appellant could move his residence to a safe region within his country of origin. With that, the FOR in effect examined the relevance of the applicant’s allegations according to Art. 3 Asylum Law, which is not permissible in this context.
Decision 2004 / 36, English Summary
[Original decision] [Definition of Terms]
The notion of “other documents that allow identification of the asylum seeker” as used in Art. 32 para. 2 (a) Asylum Law is not identical to the notion of identity papers in Art. 1 (c) Asylum Ordinance 1. Under certain circumstances, even a document without a photograph may allow for firm establishment of the identity of an asylum seeker.
Decision 2004 / 37, English Summary
[Original decision] [Definition of Terms]
An identity paper can satisfy the standards of Art. 32 para. 2 (a) Asylum Law despite not including all the elements of identity named in Art. 1 (a) Asylum Ordinance 1. It does not necessarily have to be issued in the country of origin of the asylum seeker.
Decision 2004 / 38, English Summary
[Original decision] [Definition of Terms]
1. The obligation of the authority to take note of the parties’ statements and to look into them is inextricably linked to the right of a party to be heard before a decision. This must, accordingly, be reflected in the reasons given for the decision.
2. The obligation to state the reasons for a decision signifies that the judicial authority has to elaborate on the considerations taken therein such that the parties are able to make an appropriate appeal and the appellate court can judge the legitimacy of the decision. In the present case, the FOR-decision was quashed due to a serious violation of the obligation to give the reasons.
Decision 2004 / 39, English Summary
[Original decision] [Definition of Terms]
1. The application of Art. 14a para. 6 Law on Foreign Nationals requires a balance of interests. Furthermore this article has to be applied with reserve and in compliance with the principle of commensurability.
2. A serious endangerment or violation of public safety and order by an asylum seeker can be assumed, also where a criminal court issued only a suspended sentence of imprisonment.
3. The requirements for an exclusion from the “Humanitarian Action 2000” on the grounds of criminal acts are less stringent than those for an exclusion from temporary admission based on Art. 14a para. 6 Law on Foreign Nationals.
Decision 2004 / 40, English Summary
[Original decision] [Definition of Terms]
An asylum seeker may only be immediately expelled to a third country if he can stay in that country legally for the duration of the asylum proceedings in Switzerland. An exception to this rule is admissible if a violation of the principle of non-refoulement can be ruled out because the prerequisites for the granting of refugee status have obviously not been met (cf. EMARK-JICRA-GICRA 1998 n. 24).
