CAT/C/70/D/888/2018
before rejecting the application in a decision issued on 14 February 2018. Ruling on the
complainant’s appeal, on 15 March 2018 the Federal Administrative Tribunal overturned the
decision of the State Secretariat for Migration and returned the case to the lower court for a
new decision. On 9 May 2018, the State Secretariat conducted a new hearing with the
complainant, in the presence of her legal representative. In a decision of 11 June 2018, the
State Secretariat rejected her asylum application. Acting through her legal representative, the
complainant lodged an appeal before the Federal Administrative Tribunal on 9 July 2018. In
a decision of 25 July 2018, the examining magistrate of the Tribunal rejected the application
for free legal aid, considering that the appeal had no chance of success, and gave the
complainant until 9 August 2018 to pay the advance on procedural costs of 750 Swiss francs.
Since the complainant did not pay the advance on costs as requested, the Tribunal did not
proceed to examine the appeal of 9 July 2018 and concluded the proceedings by decision of
21 August 2018.
4.3
The State party recalls that, under article 22 (5) (b) of the Convention, the Committee
does not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies.3 This rule does not apply where it
has been established that the application of those remedies has been or would be unreasonably
prolonged or would be unlikely to bring effective relief to the individual. According to the
Committee’s jurisprudence, the illusory nature of the remedy may, in general, be overlooked
if the author of a communication has furnished no evidence that such remedies would be
unlikely to succeed.4 In its practice, the Committee has previously noted that, in principle, it
is not within the scope of its competence to evaluate the prospects of success of domestic
remedies, but only whether they are proper remedies for the determination of the author’s
claims.5 In keeping with the Committee’s practice, a remedy is shown not to be proper when
it has no suspensive effect6 or when the cost of the procedure is too high.7
4.4
In this case, the interim ruling on the appeal’s chances of success and the advanced
payment of costs was taken by the single investigating judge. If the fees are paid in advance,
the judgment on the merits can be handed down by the single judge, provided that a second
judge concurs, in accordance with article 111 (e) of the Asylum Act (No. 142.31) of 26 June
1998. Failing such agreement, the judgment on the merits is handed down by a panel of three
judges, in accordance with article 21 (1) of Act No. 173.32 of 17 June 2005 on the Federal
Administrative Tribunal, in conjunction with article 105 of the Asylum Act. Thus, the interim
ruling did not prejudge the ruling on the merits. Moreover, it is not apparent from the file that
the request for the complainant to pay costs in advance prevented her from exhausting this
remedy.8
4.5
Therefore the State party concludes that the complainant did not exhaust the available
domestic remedies.
Issues and proceedings before the Committee
Consideration of admissibility
5.1
Before considering any claims submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention.
5.2
The Committee has ascertained, as it is required to do under article 22 (5) (a) of the
Convention, that the same matter has not been and is not being examined under another
procedure of international investigation or settlement.
3
4
5
6
7
8
4
A.K. v. Switzerland (CAT/C/36/D/248/2004/Rev.1), para. 7.2.
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 (CAT/C/19/D/52/1996), para. 7.2; P.S.
v. Canada (CAT/C/23/D/86/1997), para. 6.3; and L.O. v. Canada (CAT/C/24/D/95/1997), para. 6.5.
M.A. v. Canada (CAT/C/14/D/22/1995), para. 4.
Arana v. France (CAT/C/23/D/63/1997), para. 6.1.
A.E. v. Switzerland (CAT/C/14/D/24/1995), para. 3.
X. v. Switzerland (CAT/C/63/D/704/2015), para. 8.3.
GE.21-00516