Switzerland: Federal administrative court, 13 March 2020, D-1003/2020
| Country of Decision: | Switzerland |
| Court name: | Federal administrative court (Bundesverwaltungsgericht) |
| Date of decision: | 20-03-2020 |
| Citation: | D-1003/2020 |
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 remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union 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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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
Headnote:
An application for a revision of a final court decision of the Swiss Federal Court is only admissible if the applicant presents new relevant facts or evidence which he was not able to provide in previous proceedings even if he had acted with due diligence.
If the new evidence relates to another person’s hearing files (in the case at hand a relative’s hearing protocol before the Swiss asylum authority) the fact that the files could not be retrieved during the proceedings cannot be attributed to the applicant if he lacked the required consent from the person concerned to access the files. By rule of principle, it is the asylum authority’s duty to consult relevant documents for the assessment of an application which is notably the case for statements made by family relatives if the factual circumstances on which the respective applications are based are closely related.
Facts:
The appellant A applied for asylum in Switzerland on 14 October 2013. He is a Sri Lankan National of Tamil ethnicity.Following accusations of collaboration with the Liberation Tigers of Tamil Ealam (LTTE) and instances of physical and sexual abuse while being held prisoner in a camp. A decided to leave Sri Lanka and arrived in Switzerland on 14 October 2013.
By a decision dated 29 January 2016, the Swiss asylum authority (SEM) rejected his application for asylum on the grounds that A had not sufficiently substantiated the reasons for persecution or serious harm (Fluchtgründe) in his application. The authority ordered his immediate expulsion from Switzerland. A’s appeal against this decision before the Federal administrative court was dismissed by a judgment of 13 May 2019 (D-1485/2016).
A’s request for a revision of the authority’s decision was dismissed by the Swiss asylum authority by decision of 30 August 2019. The applicant’s appeal was dismissed by the federal administrative court by judgement of 5 November 2019 (D-5043/2019).
By letter dated 20 February 2020 A appealed against the court ruling and applied for a revision of the court’s final judgement of 13 May 2019 based on new evidence that had emerged in the case. The appellant argued that his relative F, likewise a Sri Lankan national of Tamil ethnicity, had been granted asylum on the grounds that she had been forced to leave the country in direct relation to A’s persecution (Reflexverfolgung). In her hearing F stated that after A’s flight she had been interrogated by soldiers on his whereabouts and that she had been sexually abused prompting her to flee the country. The Swiss asylum authority had regarded these allegations as sufficiently substantiated and had thus granted F asylum. According to the appellant, it would be incoherent to grant a person asylum in consideration of the fact that she had been persecuted as a direct result of another person’s (A) persecution by the same authorities, but to refuse asylum to that same person. A states that he was only able to access the relevant hearing files after F had given consent on 5 February 2020, thus after the relevant court decisions.
Decision & reasoning:
The court ruled to revise and annul its decision of 13 May 2019 (D-1485/2016). The appellant is to be reestablished in the situation as it existed before the ruling of the court, thus the appellant’s appeal against the decision of the Swiss asylum authority of 29 January 2016 is to be reexamined by the court. For the time being, the applicant is entitled to remain in Switzerland pending a final decision of the court (Art. 42 Asylgesetz).
An application for revision against a final decision of the federal administrative court is well founded if, following the final ruling, the applicant establishes new relevant facts or evidence which he was not able to present in previous proceedings and hearings, except for facts and evidence that have emerged after the court’s ruling (Art. 123 par. 2 lit. a BGG in relation with Art. 45 VGG). This notably requires that the applicant did not have positive knowledge of the relevant facts or evidence in the course of previous proceedings. It requires furthermore that the applicant could not have gained knowledge even if he had acted with due diligence. Evidence is to be regarded as new if it allows to substantiate new relevant facts or old facts known by the applicant in previous proceedings, but which he was unable to substantiate before the court. Evidence is of relevance if, had it been taken into account in previous proceedings, it would have presumably led to a different outcome.
The evidence presented by the applicant allows for a revision under these provisions, as it is new and relevant. The pieces of evidence (F’s hearing files and the decision by the asylum authority to grant asylum on these grounds) though it existed well before the court ruling of 13 May 2016, were unknown to the applicant, as they only became known to F herself during a time in which the applicant and F, due to personal differences, were not on speaking terms. It was only after 14 February 2020 that A was granted access to the relevant hearing files after F had given her consent on 5 February 2020. A acted in due diligence since, by rule of principle, it is the state authority’s duty to consult files relating to asylum applications of close relatives of the application and to examine statements made by such persons if they are of relevance for the case at hand. The new evidence presented by A (F’s hearing files) is relevant for the outcome of the proceedings. It allows to establish a close factual relation between the applications presented by both relatives. Yet, since the decision of 29 January 2016 refusing asylum did not mention the case regarding F, it cannot be established whether the asylum authority actually took into account F’s statement when assessing the appellant’s application as it would have been obliged to.
The appeal was presented in due time within the 90 days delay after discovery of the new evidence (Art. 124 par. 1 lit. d BGG).
Outcome:
Appeal granted (leading to reexamination of the case by the court)
Subsequent proceedings:
The case was referred back to the federal administrative court for reexamination based on the new evidence made available, notably the related hearing of F. The court is thus expected to take a new decision in the applicant’s case.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Moser/Beusch/Kneubühler, S. 306 Rz. 5.47
Elisabeth Escher, in: Niggli/Uebersax/Wiprächtiger (ed.), Basler Kommentar zum Bundesgesetz, 2nd edition 2011, Art. 121 N1