Communicated on 9 February 2017

THIRD SECTION

Application no. 60342/16 A . against Switzerland lodged on 19 October 2016

STATEMENT OF FACTS

The applicant, Mr A., is an Iranian national, who was born in 1982 and lives in Moosseedorf . The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms F. Lambert, a lawyer practising in Bern.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

The applicant grew up in Iran. He travelled to Switzerland in May 2009 based on a visa to visit his sister who lived there.

2. The asylum and deportation proceedings

The applicant applied for asylum on 13 August 2009. He stated that he was arrested in connection with a demonstration against the regime and subsequently tortured in prison. On 4 February 2014 the Federal Office for Migration ( Bundesamt für Migration , renamed with effect of 1 January 2015 to Staatssekrariat für Migration ) rejected his asylum request, concluding that the applicant ’ s statements were not credible. As no appeal was lodged against that decision, it became legally binding.

On 25 August 2013 the applicant was baptised as a Christian.

On 13 November 2013 the applicant lodged a request for reconsideration of his asylum application, stating that he had a broken relationship with his father who had ties to the secret service. Therefore, he was at risk of being arrested upon return. Furthermore, he was at risk of ill-treatment due to his conversion to Christianity; Iran applied the death penalty for apostasy.

On 26 February 2014 the Federal Migration Office, after hearing the applicant, rejected his request. It found that there was no real risk that the conversion itself would lead to ill-treatment, as long as the applicant was not proselytising or attracting public attention in another way. Based on the applicant ’ s statement as to his way of practising his faith, it saw no indications that the Iranian authorities would even become aware of his conversion. It also doubted the genuineness of the conversion.

On 14 May 2014 the Federal Administrative Court dismissed the applicant ’ s appeal as manifestly ill-founded. It considered that a real risk of ill-treatment would only exist if the Christian faith was manifested in a way that was visible to the outside and if the applicant ’ s family and acquaintances in Iran would learn about such manifestation. Should close family members be “fanatic” Muslims, they may denounce the applicant ’ s conversion to the secret service. In addition, a conversion may be seen as treason. Turning to the instant case, the court considered that the applicant did not manifest his faith in such manner, irrespective of whether or not his conversion could be considered to be genuine and lasting, which the court left open. The court considered that there were no indications that the Iranian authorities even became aware of the applicant ’ s conversion. It concluded that the applicant did neither meet the refugee definition contained in Article 3 of the Asylum Act nor the requirements for a temporary admission pursuant to Article 83 paragraphs 1 to 4 of the Aliens Act.

On 2 May 2016 the application lodged another application for asylum. He relied on risks arising out of his conversion and membership of a Christian community in Switzerland as well as his participation in a demonstration against the Iranian regime in Switzerland in August 2015.

On 14 June 2016 the State Secretariat for Migration rejected his application. It deemed it not to be necessary to examine the issue of conversion another time, as the applicant had not put forward any arguments that could give rise to a different assessment as the one done by the Federal Administrative Court in 2014. It noted that the Iranian authorities were aware that Iranian citizens at times attempted to rely on a conversion to Christianity in order to obtain refugee status in Western countries. Such circumstances would be considered by the Iranian authorities and would, upon return, not lead to ill-treatment within the meaning of the refugee definition. Moreover, it was possible to practice religions other than Islam in Iran in a discreet and private manner. Citing the criteria contained in the Federal Administrative Court ’ s judgment of 14 May 2014, the State Secretariat for Migration did not doubt that the applicant was part of a Christian circle in Switzerland. There were, however, no indications that he was involved in a leading function or particularly exposed in another way in connection with his Christian faith. He was, thus, only a “simple” member of a Christian organisation and there was, therefore, no concrete risk that the Iranian authorities had become aware of his conversion.

The State Secretariat for Migration noted that the Iranian authorities took interest in the activities of their citizens abroad, but considered that such monitoring was focussed on persons who stood out from the large number of Iranians critical of their regime and were perceived as a serious threat to the Iranian regime, be it by way of their political or their religious activities. A certain public exposure based on the individual ’ s personality, the nature of his activities and the content of his public statements was required to that end. The State Secretariat for Migration considered that the applicant ’ s mere participation in a demonstration against the Iranian regime was not sufficient to give risk to a risk of ill-treatment. There were no indications that the applicant had a special function that would lead to him being perceived as a concrete threat by the Iranian authorities nor that he would face persecution in Iran based on his activities in Switzerland. The State Secretariat for Migration concluded that the applicant did neither meet the refugee definition contained in Article 3 of the Asylum Act nor the requirements for a temporary admission pursuant to Article 83 paragraphs 1 to 4 of the Aliens Act. It further informed the applicant that he could be detained and forcibly returned to his home country if he did not leave Switzerland voluntarily.

On 30 August 2016 the Federal Administrative Court dismissed the applicant ’ s a ppeal as manifestly ill-founded , fully endorsing the reasoning of the State Secretariat for Migration.

On 4 October 2016 the State Secretariat for Migration set a new deadline for the applicant ’ s voluntary departure, which passed on 31 October 2016.

B. Relevant domestic law

The relevant provisions of the Asylum Act of 26 June 1998 ( Asylgesetz , 142.31) read as follows:

Art. 3 Definition of the term refugee

“1 Refugees are persons who in their native country or in their country of last residence are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages for reasons of race, religion, nationality, membership of a particular social group or due to their political opinions.

2 Serious disadvantages include a threat to life, physical integrity or freedom as well as measures that exert intolerable psychological pressure. Motives for seeking asylum specific to women must be taken into account.

3 Persons who are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages because they have refused to perform military service or have deserted are not refugees. The provisions of the Convention of 28 July 1951 relating to the Status of Refugees are reserved.

4 Persons who claim grounds based on their conduct following their departure that are neither an expression nor a continuation of a conviction already held in their native country or country of origin are not refugees. The provisions of the Convention of Refugee Convention are reserved.”

Art. 5 Ban on refoulement

“1 No person may be forced in any way to return to a country where their life, physical integrity or freedom are threatened on any of the grounds stated in Article 3 paragraph 1 or where they would be at risk of being forced to return to such a country.

2 The ban on refoulement may not be invoked if there are substantial grounds for the assumption that, because the person invoking it has a legally binding conviction for a particularly serious felony or misdemeanour , they represent a threat to Switzerland ’ s security or are to be considered dangerous to the public.”

Art. 7 Proof of refugee status

“1 Any person who applies for asylum must prove or at least credibly demonstrate their refugee status.

2 Refugee status is credibly demonstrated if the authority regards it as proven on the balance of probabilities.

3 Cases are not credible in particular if they are unfounded in essential points or are inherently contradictory, do not correspond to the facts or are substantially based on forged or falsified evidence.”

Art. 54 Subjective post-flight grounds

“Refugees shall not be granted asylum if they became refugees in accordance with Article 3 only by leaving their native country or country of origin or due to their conduct after their departure.”

The relevant provision of the Aliens Act of 16 December 2005 ( Bundesgesetz über die Ausländerinnen und Ausländer , 142.20) provided as follows:

Art. 83 Order for temporary admission

“1 If the enforcement of removal or expulsion is not possible, not permitted or not reasonable, the SEM shall order temporary admission.

2 Enforcement is not possible if the foreign national is unable to travel or be brought either to their native country or to their country of origin or a third country.

3 Enforcement is not permitted if Switzerland ’ s obligations under international law prevent the foreign national from making an onward journey to their native country, to their country of origin or to a third country.

4 Enforcement may be unreasonable for foreign nationals if they are specifically endangered by situations such as war, civil war, general violence and medical emergency in their native country or country of origin. ... ”

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that, on account of his conversion to Christianity and his membership of a Christian circle in Switzerland as well based on his participation in a demonstration against the Iranian government in Switzerland, he would be either executed or subjected to treatment in violation of Article 3 if he were removed to Iran.

QUESTION TO THE PARTIES

In the light of the applicant ’ s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Articles 2 or 3 of the Convention if he were removed to Iran?