Switzerland – Federal Administrative Court, 8 February 2018, D-635/2018
| Country of Decision: | Switzerland |
| Country of applicant: | Turkey |
| Court name: | Federal Administrative Court (Bundesverwaltungsgericht) |
| Date of decision: | 08-02-2018 |
| Citation: | D-635/2018 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
In cases of deportation to a third country, the competent authority is required to assess, on a case-by-case basis, if the third country offers effective legal protection against deportation to the state of origin.
In the case of a Turkish journalist of Kurdish origin, the competent authority had only insufficiently assessed if the applicant enjoys sufficient legal protection in Brazil against refoulment to Turkey. It therefore violated her right to be heard.
Facts:
The applicant is a Turkish national of Kurdish origin. In January 2018 she travelled via diverse countries to Brazil and from there to Switzerland, to request asylum at the airport of Zurich. She was refused entrance into the country and had to stay at the transit area of the airport.
In her hearing, the applicant said she was a journalist and had been arrested because of her job in Turkey in 2009. The police had tortured her and she had to spend two years and three months in custody. A Turkish court had sentenced her to seven years and six months of imprisonment because of membership in a terrorist organization.
The Swiss authority issued a decision, not to examine the merits of the asylum application (“Nichteintretensentscheid”) on 23 January 2018. It explained, that it was bearable for the applicant to return to Brazil and apply for asylum there. It declined the asylum application in Switzerland and ordered the expulsion of the applicant.
The applicant appealed against the decision at the Federal Administrative Court on 30 January 2018, attaching the Turkish judgement issued against her, a copy of the Agreement of mutual legal assistance in criminal matters between Turkey and Brazil, diverse letters of journalist organizations, a medical certificate, a report by Amnesty International and asylum statistics of Brazil. She claims to be an internationally known Kurdish journalist who was sentenced wrongly to several years of imprisonment in Turkey. It had been her plan from the beginning on to apply for asylum in Switzerland, where friends of hers live, and only pass through Brazil for a couple of days. In Brazil, it was not safe for her as a woman and she had been sexually harassed there. Brazil has no functioning asylum system and refugees are left on their own. She also risks being deported back to Turkey. The applicant claims that her right to be heard was violated, because the Swiss authority had not assessed properly if Brazil offers effective legal protection against refoulement to Turkey.
Decision & reasoning:
The Federal Administrative Court examines, only, if the decision of the Swiss authority, not to consider the merits of the asylum application, is justified. It is not an issue of this judgement if the applicant is entitled to enter Switzerland.
According to Section 31a Asylum Act the competent authority does not have to consider the merits of an asylum application, if the applicant is able to return to a third country. This rule does not apply on a case-by-case basis if the third country does not offer effective legal protection against forced deportation to a country that poses a danger to life and freedom of the person concerned.
In its reasoning, the Court examines if the right to be heard of the applicant had been violated. The inquisitorial principle (“Untersuchungsgrundsatz”) governs the asylum procedure, meaning that the competent authority has to find all the facts on its own initiative. The applicant is obliged to cooperate.
Swiss law distinguishes between third countries that the Federal Council has declared safe and other third countries. Brazil is a so called “other third country”. In this case the competent authority is required to assess on a case-by-case basis, if the third country concerned offers effective legal protection against deportation to the state of origin.
In its statement the competent authority comments only rudimentarily on legal protection against deportation in Brazil. It does not carry out a case-by-case assessment, although this would have been obvious because of the political profile of the applicant.
Consulting reports about Brazil by the Heinrich Böll Foundation, UNHCR and Amnesty International, the Court observes that there have been deportations to other countries despite an asylum application being lodged in Brazil and an overload of the asylum system. The Swiss authority is required to consider these findings in its reassessment of the applicant’s asylum application.
In conclusion, the Court finds that the previous instance had examined inadequately the facts and the question if the third country Brazil offers effective legal protection against deportation. This results in a violation of the right to be heard of the applicant.
Outcome:
Appeal granted; Reassessment by previous instance.
Observations/comments:
This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.
Cited National Legislation:
Other sources:
Camila Asano, Pétalla Timo, Heinrich Böll Foundation, “Das neue brasilianische Migrationsgesetz und die Menschenrechte” (The new Brazilian migration law and human rights), 3. July 2017, https://www.boell.de/de/2017/07/03/das-neue-brasilianische-mig-rationsgesetz-und-die-menschenrechte
UN High Commissioner for Refugees (UNHCR), Submission by the United Nations High Commissioner for Refugees; For the Office of the High Commissioner for Human Rights' Compilation Report; Universal Periodic Review: 3rd Cycle, 27th Session; Brazil, 09.2016, http://www.refworld.org/docid/59197d644.html
Amnesty International, Annual Report 2016/2017 – Brazil, 22.02.2017, https://www.amnesty.org/en/countries/ americas/brazil/report-brazil/