CAT/C/62/D/710/2015
his account as improbable and pointed out that his statements were contradictory and that
the contradictions in question related to important elements of his allegations. Furthermore,
the political activities reportedly carried out by the complainant in Switzerland were not
such as to draw the attention of the Sudanese authorities.
4.4
On 16 February 2015, the complainant lodged an appeal with the Federal
Administrative Court against the decision of the State Secretariat for Migration. The
presiding judge (a single judge) handed down a ruling on 19 February 2015 rejecting his
request for legal assistance, considering the appeal lodged by the complainant to have no
chance of success, and invited the complainant to pay 1,200 Swiss Francs in advance to
cover procedural fees, failing which his appeal would be declared inadmissible. As the
complainant did not make the advance payment by the prescribed deadline, the Court
declared the appeal inadmissible in a ruling handed down on 12 March 2015. Therefore, the
complainant’s allegation that the Federal Administrative Court rejected his appeal does not
reflect reality.
4.5
On 16 July 2015, the complainant submitted a third application for asylum to the
Federal Office for Migration. In a decision taken on 11 August 2015, the State Secretariat
for Migration informed the complainant that his application for asylum constituted a
multiple application in the sense of article 111 (d) of the Asylum Act of 26 June 1998.
Considering the requirements set out in article 111 (d) (3) of the Asylum Act not to have
been met, it invited the complainant to pay 600 Swiss francs in advance, failing which his
application would be declared inadmissible (decision of 11 August 2015). As the
complainant did not make the advance payment by the prescribed deadline, the State
Secretariat for Migration dismissed his third application for asylum out of hand (decision of
3 September 2015).
4.6
On 11 September 2015, the complainant lodged an appeal with the Federal
Administrative Court against the State Secretariat for Migration decision of 3 September
2015 in which he asked for the decision to be overturned. In a ruling handed down on 22
September 2015, the Court rejected the complainant’s appeal, highlighting that it concerned
only the Secretariat’s decision of 3 September 2015 and that, in his appeal, the complainant
had not requested, even in substance, that the Secretariat’s interim ruling of 11 August 2015,
in which it was found that his third application for asylum had no chance of success, be
overturned. In the absence of any appeal, the Secretariat’s decision of 11 August 2015 then
became final and, thus, the appeal proceedings concerned only the question of whether the
State Secretariat for Migration had correctly established that the applicant had not paid the
fees in advance as requested.
4.7
The State party argues that, in accordance with article 22 (5) (b) of the Convention,
the Committee shall not consider any communications from an individual unless it has
ascertained that the individual has exhausted all available domestic remedies, 3 and that this
rule shall not apply where it has been established that the application of those remedies has
been or would be unreasonably prolonged, or that it is unlikely to bring the individual
effective relief. The State party should have the opportunity to examine new elements of
evidence before the matter is referred to the Committee in a communication under article
22 of the Convention. 4 In keeping with the Committee’s practice, the principle of
exhaustion of domestic remedies also requires the complainant to have informed the
competent national authorities of any new elements that occur after the definitive rejection
of his application for asylum.5
4.8
The State party argues that, according to the Committee, the alleged illusory nature
of the remedy may, in general, be overlooked if the complainant has furnished no evidence
that such remedies would be unlikely to succeed.6 In its jurisprudence, the Committee notes
3
4
5
6
GE.18-01489
See A.K. v. Switzerland (CAT/C/36/D/248/2004/Rev.1), para. 7.2.
See A.E. v. Switzerland (CAT/C/14/D/24/1995), para. 4.
See F.M.-M. v. Switzerland (CAT/C/46/D/399/2009), paras. 6.3 and 6.5; P.M.P.K. v. Sweden
(CAT/C/15/D/30/1995), para. 7; K.K.H. v. Canada (CAT/C/15/D/35/1995), para. 5; and K.N. v.
France (CAT/C/23/D/93/1997), para. 6.3.
See R.K. v. Canada (CAT/C/19/D/42/1996), para. 7.2; see also N.D. v. France
(CAT/C/15/D/32/1995), para. 5; D. v. France (CAT/C/19/D/45/1996), para. 6.2; R. v. France
3