Switzerland – Federal Administrative Court, 16 August 2016, E-4122/2016

Country of Decision:
Country of Applicant:
Date of Decision:
16-08-2016
Citation:
E-4122/2016
Court Name:
Federal Administrative Court (Bundesverwaltungsgericht)
National / Other Legislative Provisions:
Switzerland – AsylG (Asylum Act) – Art. 2
Switzerland – AsylG (Asylum Act) – Art. 3
Switzerland – AsylG (Asylum Act) – Art. 6
Switzerland – AsylG (Asylum Act) – Art. 7
Switzerland - AsylG (Asylum Act) - Art. 105
Switzerland - AsylG (Asylum Act) - Art. 106(1)
Switzerland – AsylG (Asylum Act) – Art. 108
Switzerland – AsylG (Asylum Act) – Art. 111
Switzerland – BGG (Federal Supreme Court Act) – Art. 83(d) No. 1
Switzerland – Section 29 BV (Federal Constitution)
Switzerland – VGG (Administrative Court Act) - Art. 31-33
Switzerland – VGG (Administrative Court Act) - Art. 37
Switzerland – Sections 7 VGKE (Act on Costs and Compensation)
Switzerland – Sections 9 VGKE (Act on Costs and Compensation)
Switzerland – Sections 13 VGKE (Act on Costs and Compensation)
Switzerland – Sections 14 VGKE (Act on Costs and Compensation)
Switzerland - VwVG (Administrative Procedure Act) - Art. 5
Switzerland - VwVG (Administrative Procedure Act) - Art. 12
Switzerland – VwVG (Administrative Procedure Act) – Art. 26
Switzerland – VwVG (Administrative Procedure Act) – Art. 27
Switzerland – VwVG (Administrative Procedure Act) – Art. 29
Switzerland – VwVG (Administrative Procedure Act) – Art. 32
Switzerland – VwVG (Administrative Procedure Act) – Art. 33
Switzerland – VwVG (Administrative Procedure Act) – Art. 35
Switzerland – VwVG (Administrative Procedure Act) – Art. 48
Switzerland – VwVG (Administrative Procedure Act) – Art. 49
Switzerland – VwVG (Administrative Procedure Act) – Art. 52
Switzerland – VwVG (Administrative Procedure Act) – Art. 63
Switzerland – VwVG (Administrative Procedure Act) – Art. 64
Switzerland – VwVG (Administrative Procedure Act) – Art. 65
Printer-friendly versionPrinter-friendly version
Headnote: 

A Syrian asylum-seeker successfully challenges a negative asylum decision before the Swiss Federal Administrative Court because of violations of his right to be heard.

Facts: 
The applicant is a member of the ethnic minority of Kurds. He is of Ajnabi origin and later obtained Syrian nationality. In July 2015, he travelled irregularly via other countries to Switzerland and requested asylum.
 
The Swiss authorities first wanted to transfer him back to Hungary under the Dublin Regulation, but then accepted to examine his asylum application under Swiss law.
 
The applicant was heard by the Swiss State Secretary for Migration (“Staatssekretariat für Migration” – SEM). He claimed that two Kurdish armed militia in Syria - Apoci and YPG – were threatening him and searching for him because of his father’s membership in the C-party. The applicant himself is not a member of this organisation, but supports his father in his political activities. Since 2012, the applicant actively took part in demonstrations of the C-party. After some of these, he was assaulted by Apoci members. Furthermore, the applicant fears to be recruited by force by Apoci and the Syrian army.
 
Two uncles and the fiancée of the applicant have been granted asylum in Switzerland. The applicant’s brothers and all other family members except for one married sister also live as asylum seekers in Switzerland.
 
Treating the arguments of the applicant as manifestly unfounded, the SEM issued a decision on 31 May 2016 that the applicant was not entitled to asylum in Switzerland as he did not qualify as a refugee and ordered his expulsion to Syria. Due to the unreasonableness of expulsions to this country, the applicant was granted temporary residence.
 
The applicant appealed against the SEM’s decision at the Federal Administrative Court on 1 July 2016. He claims that his right to access to file and right to be heard have been violated, stating that, inter alia, the SEM did not sufficiently recognise the evidence submitted by him.
 
Decision & Reasoning: 
The application was successful. The Federal Administrative Court granted the applicant a right to appeal.
 
In its reasoning, the Court examines various aspects of the applicant’s right to access to file and the right to be heard. The right to be heard requires the competent authority to listen to the arguments brought forward by the applicant, to carefully and genuinely assess them and to consider them in the decision.
 
The Federal Administrative Court finds a number of legal infringements in the way the SEM treated the applicant’s plea: The applicant had submitted diverse means of evidence (in particular, photos, videos, a USB flash drive). By not listing this evidence in the applicant’s asylum file, the SEM violated its duty of a thorough file management. The SEM also violated the rights of the applicant by not considering that other family members had been granted asylum in Switzerland. It would have been necessary for the SEM to consult the asylum files of the parents and brothers of the applicant to verify the arguments brought forward by him. Files of other persons applying for asylum have to be consulted if there is a connection between the asylum claims of these persons. This can be the case, if relatives have been granted asylum status or for other objective reasons.
 
The Court found another violation in the fact that the SEM did not consider other significant submissions by the applicant, namely his Ajnabi origin, taking part in various demonstrations in Syria, the membership of the applicant’s father in the C-party and the latter’s Facebook posts. The fact that the SEM summarised the protocol of the hearing, which comprised approximately 30 pages, in only three lines in its decision, indicates that the facts and circumstances have not been assessed carefully by the SEM.
 
Outcome: 

Appeal granted.

Observations/Comments: 

This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.

Case Law Cited: 

Switzerland – Federal Administrative Court, 19 September 2011, D-812/2009

Switzerland – Federal Court, 30 May 1989, 115 V 297

Switzerland – Federal Administrative Court, 8 October 2014, D 3622/2011