By Together Against Genocide (TAG, formerly Tamils Against Genocide), Friday, February 24 2012
The original version in German can be found here
Translation below, contact TAG for certified copies for court.
B u n d e s v e r w a l t u n g s g e r i c h t
T r i b u n a l a d m i n i s t r a t i f f é d é r a l
T r i b u n a l e a m m i n i s t r a t i v o f e d e r a l e
T r i b u n a l a d m i n i s t r a t i v f e d e r a l
Verdict of October 27 2011
Judge Christa Luterbacher (Chair)
Judge Markus König, Judge Maurice Brodard,
JudgeWalter Stöckli,Judge Jenny De Coulon Scuntaro,
Trial typist Sandra Bodenmann
represented by Matthias Rupp, lawyer,
Seestrasse 441, 8038 Zürich,
Bundesamt für Migration (BFM),
Quellenweg 6, 3003 Bern,
Court of Lower Instance.
Asylum and deportation;
Order of the BFM of October 31 2006 / (…).
The claimant left according to his own information his home country on September 22 2006 by plane and reached Switzerland via Malaysia and Thailand on September 28 2006, where he eventually pleaded asylum at Zurich Airport. On September 29 2006 he was summoned by the Airport Police to be questioned about his departure from his home country as well as his personal circumstances. Following the approval given by the Ministry of Migration (BFM) for the entry of the claimant, he was questioned on October 16 2006 in the reception and proceeding centre (EVZ) in Kreuzlingen. He was thereby claiming to derive from B._____, Northern Province. From May 2002 to May 2003, respectively 2003 to 2004 and from March/April 2006 to September 22 2005 the claimant states to have lived in Colombo. He is said to be of Catholic faith. He claims to have worked in the family owned grocery store and to have sold fishing nets.
Neither in Zurich Airport nor in the EVZ in Kreuzlingen the claimant was questioned about his actual reasons for searching asylum. During to the summary questioning in Kreuzlingen the claimant stated in the additional remarks section (compare hereby: A18/9, P6) that he wants something to be added to the records what he not mention at the airport: He was in B.______ working as a trader. On March 25, 2006 he was handed a threat letter by the “Karuna Group” that threatened with his death if he was not to pay a certain sum close to the police station in C.______. During that period he had finished a one month enduring enforced training by the LTTE, which left him with many scars. Since he couldn’t pay the money and couldn’t take part in the training of the LTTE anymore he travelled to Colombo where he was living in a suburb called D._______. On August 10, 2006 two unknown persons were said to have appeared on a motorbike at his residence in Colombo and looked for the claimant. The landlord took them to the claimant, whereby one of the unknown men took out a weapon and aimed and shot at him. The landlord was said to have been able to deflect the gunshot when the claimant said to have taken the chance to flee from the apartment block. As a result of this incident the claimant is said have filed a complaint on (…) 2006 at a police station in Colombo.
On October 26, 2006 the claimant was questioned by the BFM directly about his reasons for requesting asylum. Thereby he provided to the records the information to have led two shops in his village of origin: one shop in E._______ and another in F._______. The LTTE, who was controlling his village, forced him in February 2006 to take part in a one month body training. Today he is said to carry scars from a fall and from having been forced to crawl on the soil. After the body training, he received on (…) 2006 a letter by the LTTE, whereby one family member was proscribed to appear to a weapons training and to join the LTTE. His father is said to have torn apart the letter in rage. Following, on (…) 2006 he received a letter by the “Karuna fraction” with the request to pay 2 million SL RS or to face to be shot. After receiving the letter he is said to have travelled to Colombo. On (…) 2006, two unknown men appeared at his apartment block in Colombo and are said to have tried to shoot the claimant. The landlord is said to have beaten the shooter on his hand to prevent the claimant to be hit by the bullet shot. The claimant is said to have immediately gone to the police station to hand in a complaint.
In support of his asylum claim the claimant handed in three letters of support (dated from (…) 2006 written by the regional director of “Home for Human Rights” in G._____; dated on (…) 2006 written by H._____, Attorney-at-Law, Notary Public, G.______; and dated on (…) 2006, written by I._____).
With the order of October 31, 2006 – launched on the same day in the EVZ Kreuzlingen – the BFM rejects the asylum plea and orders the deportation of the claimant from Switzerland as well as the enforcement of the deportation.
The court of lower instance justifies its negative decision in essence with the claims of the claimant to not live up to the relevance to the provision of asylum. Hereby, the mentioned importunity by the LTTE and the Karuna fraction – in case they can be trusted based on existing inconsistencies – are argued to be locally or regionally restricted means of persecution. The claimant had the provision of intrastate alternative places of residency, which he could have eluded to from the persisting disadvantages he faced. The LTTE has since a long time fought without concession against “dissenters” and “traitors”, who question their claim of sole representation and are responsible for numerous “political killings”. This trend has augmented since the internal breakup of the LTTE in March 2004. Four main categories of persons could be identified who would be the target of the LTTE: deserted formerly high-ranking LTTE members and members of enemy LTTE fractions, members of government friendly Tamil groups, members of the Sri Lankan Army and the police intelligence service as well as critical Tamil journalists. In these cases, a country wide persecution by the LTTE cannot be excluded. The claimant can however not be identified into any of these human categories. Additionally, the claimant has failed to search for sanctuary with officials. He claims disadvantages, which derive from locally or regionally restricted means of persecution. As he could elude from the claimed disadvantages by moving to another part of his country of origin he fails to be dependent on Switzerland. Subsequently, his claims cannot qualify to be of relevance for the provision of asylum. In relation to his claimed assassination attempt on (…) 2006 in Colombo it remains to be stated that the assault to be that of a third party. The Sri Lankan state carries no responsibility for the assault, as the relevant authority has further received the complaint filed by the claimant. The possible cease of penalty of such assaults can be reasoned differently. Henceforth it could be that despite the willfulness of the authority to protect citizens that investigations cannot be finished successfully or the authorities forced to remain idle when there is not enough evidence of culpability provided. Thereby, in further consideration of the received letters of support the assault remains to not be relevant for the provision of asylum. In conclusion, the BFM considers the deportation of the claimant to Sri Lanka as valid, reasonable and possible.
Versus the verdict of the BFM of October 31, 2006, the claimant handed in through his legal representative of the former Swiss Asylum Commission (ARK) a complaint and a request for recognition of his eligibility of being a refugee and for the provision of asylum. Eventuallyto legitimize his provisional admission.
To justify his complaint, the claimant stated that neither him nor any of his family members to have sympathized with the LTTE. He claims to have never been politically active and did not want to participate in military training for the state government or the LTTE. After a temporary calm of the war confrontations based on the cease-fire treaty between the LTTE and the government, the problems increased disproportionally in 2004 when Karuna broke away from the LTTE as an organization. The father of the claimant is said to have continuously been forced to pay money to the LTTE and was consequently also arrested once by the government and maltreated in detention. The claimant was at first neither of interest to the government, nor the LTTE. The latter has however in February 2006 drastically changed when he and his brother were forcibly recruited by them. Officially, B.____ has not been part of the LTTE controlled areas, but remained to be de-facto part of their territory control where even military trainings took place in the village. The government army did only have little or no influence on the village. As the only unmarried young man of the family the claimant became the target of the LTTE. On the one hand he was handed over on (…) 2006 a letter, but on the other hand has been given an order after the completion of his training to forcibly join the LTTE. During mid November 2006 he is said to be told about the disappearance of his older brother. Hence, it is feared that this is linked to the persona of the claimant. Thereon he is said – similar to many other wealthy business men – to have been forced by threat of death by the Karuna fraction to pay financial support on (…) 2006. Post flight to Colombo he is said to have nearly become the victim of an assassination attempt, which urged him to feel obliged to flee abroad. The fact that he the authorities in Colombo have received the complaints of the claimant does in no means mean that he is provided with state protection. The police complaint is said to have only been filed on the wishes of the landlord so that he will not fall under suspicion of having hosted terrorists. As the government has great interest in letting the Karuna group work against the LTTE, the Karuna group is given the freedom to act by the state. Since the claimant is statewide persecuted as a wealthy businessman he subsequently lacks of intrastate alternative places of residency. The threat of persecution is mainly rooted in the Karuna group, who has enlisted the claimant on a death list. Due to the close collaboration between the Karuna group, the Sri Lankan Armed Forces and the government it can be assumed that the state does not provide protection to the claimant and will thereby relatively remain passive towards his situation. Further it needs to be considered that the claimant is in the best age of recruitment. Additionally, the fact that the brother disappeared indicates to a linkage to the flight of the claimant, whereby the conclusion can be drawn to a continuing threat of persecution of the claimant.
The claimant handed in various documents (report of the Swiss Refugee Aid (SFH) of May 31 2005: Sri Lanka – current situation; New Zürich Paper (NZZ) Online of November 27, 2006: Numerous dead in fightings between Sri Lanka, accessed November 18, 2006; NZZ of November 29, 2006: the LTTE chief declares end of cease-fire) to the current conditions in Sri Lanka.
With the submission of December 6, 2006 a medical testimonial by Dr. med. J.____ of November 30, 2006 was handed in. The submission states that the claimant shows scars on his left shoulder and left elbow, which are according to the viewpoint of the signed doctor to be traced back to beatings.
With the power of instruction of December 12, 2005 the formerly responsible ARK told the claimant that he can wait in Switzerland until the end of his trial. The review of further claims was postponed to a later stage.
With the submission of December 18 2006 the claimant handed in a background report on life in Colombo from the New Zurich Newspaper (NZZ) from December 14 2006 and explicitly referred to the reported Sri Lankan state covered up abductions of well known wealthy businessmen in the country.
In light of the interim order from January 18 2007 the claimant was told by the Federal Constitutional Court that the complaint handed in by the ARK is from January 1 2007 onwards in the responsibility of the Federal Constitutional Court. Simultaneously a retainer of 600 FR was demanded.
On January 30 2007 the retainer was paid in due time.
During his consultation on May 22 2008 the BFM continued to support its rejection of the complaint. It additionally elaborated that the claimant has so far neither handed in his identity papers nor the police complaint document, whereby his contention was of October 31 2006 is to be as previously stated doubted. Further inconsistencies have occurred in relation to the reasons of his injuries. At last, the claimed financial blackmail from the Karuna group could not be substantiated.
With the replicate submission of June 12 2007 the claimant handed in his identity card and elaborated that he was awaiting the moment to hand over his ID card to a reliable person on his travel to Switzerland as a direct mailing from Sri Lanka would have been too risky. Additionally, one his brothers is said to have travelled to Colombo two montsh ago to obtain the police report or documents in relation to it. He was thereby immediately arrested. Only with the help of I._____ his brother is said to have been able to be released from prison. As a result of the arrest, the family of the complainant will refrain from further attempts to obtain the police documents. Moreover, the claimant has had the opportunity to tell his doctor in all calamity about the injuries he received from LTTE officials during the training. Eventually the claimant was consistently narrated the same story when questioned about the financial blackmailing, which is why there is no room for doubts.
With the interim order of the Federal Constitutional Court of July 25 2009 the BFM was invited according to the consideration of the published verdict BVGE 2008 Nr. 2 to reply to the complaint of the claimant.
With additional consultation on August 27 2008 the BFM recorded that the claimant has still not handed in the police report that was issued in his name by the police. The BFM referred to the general possibility of obtaining such documents. Additionally, it is said to be remarkable that the claimant could only report to his doctor about the afflicted beatings and the respective declaration to not already be included in his complaint from November 20 2006. Additionally, the attempts to declare in the revision submission of June 12 2007 did not change anything about the fact that the claims of financial blackmail remain unsubstantiated, nonbinding and vague. As the claimant has resided beforehand for a year for a K._____ in Colombo and has there according to documents had access to business partners of his father and acquaintances, which leads to the assumption that the good financial situation of the claimant renders a deportation reasonable.
With the submission of September 16 2008 the claimant was commenting in the second consultation of the BFM that the general security situation in Colombo has dramatically worsened. Further relatives of the claimant were arrested in Colombo as they struggled to obtain official documents. These relatives remain missing since then. This indicates to the current situation to be of disproportionate high risk for the Tamil population to access and speak to the police. Thereby it remains to be of normal behavior of young men that they are only able to report about their experiences in private discussions once they are in a safe surrounding. It is not the beatings, but the threat of abduction and killing linked to the received threat as well as the attack on him which have caused the flight of the claimant. In relation to the deportation it remains incomprehensible that the BFM assumes based on the stay in Colombo to complete K._____ the claimant to have an intact network of relations. Based on the worsening of the security situation in Colombo it cannot seriously be considered to be of safety for the trading partners of his father to follow their business in calm. Subsequently it remains impossible to assume of the existence of an intact network of relationships. The civilian population of B._____ lives since the invasion of the area by the military on September 1 2007 in L._______ in an internally displaced camp. It can be further asserted that the entire infrastructure of the former shop of the claimant to be destroyed or looted. The entire M…. of the North to Colombo is since the flight of the claimant non existent. The only acquaintance of his the father of the claimant in Colombo has in between left Sri Lanka in fear of his life and fled to N._______. The claimant has believably explained that during the time of his departure from Sri Lanka a grounded fear of persecution continued to exist. A deportation into his home country is therefore under all circumstances unreasonable to qualify.
This submission was attached with two documents (letter by the attorney-at-law H.____ of (…) 2008 as well as the confirmation of the father of the complainant of September 23 September 2008), which indicate that the family members of the complainant were displaced by the army operation of September 1 2007.
With the order of instruction of October 26 2010 the Federal Constitutional Court invited the BFM to an additional consultation that was set till November 30 November 2010. The BFM was instructed to give a statement on the –self-announced - investigation on its deportation practice of rejected asylum seekers from Sri Lanka. It was alluded that the Federal Constitutional Court contemplates about the ongoing trial in relation to a country judgment to assert to an update of the BVGE 2008 NR. 2 published deportation practice to Sri Lanka.
With the letter of November 15 2010 and December 27 2010 the BFM looked for a deadline extension from end of December 2010 to a respective end in February 2011.
With the submission of November 17 2010 and January 11 2011 the deadline extension was approved.
In his consultation on March 1, 2011 the BFM continues to hold on to its assertion and applied for the deportation of the claimant.
Additionally, the BFM stated that the situation in Sri Lanka has since the time of the contested plea of October October 31 2006 changed substantially. The warmed conflict between the sri lankan government and the LTTE has come in May 2008 to an end. In relation to the general amelioration of the general condition in the country the BFM considers the deportation of the claimant to continue to be reasonable.
For further elaboration it is being referred to the consideration 11.2.2 in the appendix.
With the reply submission of April 26 2011 the claimant states that the BFM has in its consideration of the post-war situation in Sri Lanka completely ignored important and relevant circumstances. Thereby, several sources indicate amongst them the report of the SFH of December 1 2001 that within the country the civilian population that tries to return to its villages remains to be confronted with massive obstacles. The BFM has also not mentioned that the government intensely politically persecutes those who in one form or another stood in connection to the LTTE or are suspected to have been. Further, the BFM has ignored that the claimant was forcibly recruited by the LTTE and was several times forced to pay money, which would render him to the danger of arrest, torture and death by arrival. All forcibly removed and deported back persons to Sri Lanka are reported to the CID for national and previous convictions. Depending on the cases the transfer to the State Intelligence Service (SIS) or the Terrorist Investigation Department (TID) are ordered. From the report of the SFH the following groups were identified to be explicitly threatened. The complainant fulfills all criteria and is therefore in sight of a high threat of state persecution. Even after the official end of war the family of the complainant is continuously and regularly, practically every week visited by the security forces in order to identify the place of residence of the complainant. It is a fact that since the end of war a continuously strong presence of security forces in the North and East of the country have persisted and for Tamils to have especially become the target of security measures in the entire country. In order to raise the pressure on the family of the complainant his father and his brother in law were arrested and respectively also held for several months in detention in order to be questioned about the location of the complainant. The to the reply submission attached report states where and when his brother in law were arrested. Since then he is forced to by writing every month to assure the authorities to not know anything about the location of the complainant. It is a fact that the person, who is said to have had any connection to the LTTE is being sought after and put under inceasing pressure, whereby there are no distinctions made between whether the suspect voluntarily joined the guerilla or was forcibly recruited. Due to his former forcible recruitment and his stay at the LTTE training centre in February 2006 the complainant accounts for the government to be a to be persecuted enemy of the government. With the attached invitation to a police hearing (Special Crimes Investigation Unit; SCIU) from March 14 2001 it can be proven that the complainant is sought after by the police and to be told to come on March 31 2011 the last time. The claimant lives in Switzerland as a contributing and inconspicuous life. He speaks fluent Swiss-dialect and has been assimilated excellently. He earns enough to be completely independent from any social welfare. His boss is more than satisfied with him.
The reply submission as attached with several documents of proof (SFH report of December 1 2010: Sri Lanka, current situation; letter from the Ministry of Defence, Public Security (Receipt on Arrest) of December 12 2009; letter from the SCIU of March 14 2011 (order of summons for an inquiry); attestation of employer of March 2011, attestation of residence of April 11 2011 and removal from the enforcement register of April 11 2011.
The Federal Constitutional Court takes into consideration:
According to Article 31 of the Federal Constitutional Court of June 17 2005 (Federal Administrative Court Act, Systematic Order 173.32), the Federal Administrative Court appeals against orders in accordance with Article 5 Administrative Enforcement Act, except as permitted under the provision of Article 32 of the Federal Constitutional Court Act. The authorities mentioned in Articles 33 and 34 of the Federal Administrative Court Act are considered as lower courts. These include the Orders of the BFM on the basis of the Asylum Law; the Federal Administrative Court decides conclusively in this case, except there is a submission of a request for extradition of the country, from which the appealing person seeks protection (Article 105 of the Asylum Law June 26 1998 [Asylum Law, Systematic Order 142.31]; Article 83 d No. 1 of the Federal Supreme Court Act of June 17 2005 [Federal Supreme Court Act, Systematic Order 173.110]).
The Federal Administrative Court has adopted the legal means, which were pending, as of January 1 2007. The new procedural law is applicable (see Article 53 para. 2 Federal Administrative Court Act). Due to the changes to the Asylum Law, which came into effect as from January 1 2007 (see para. 1 of the transitional propositions for the change of the Asylum Law of December 16 2005), these asylum procedures are valid.
The Violation of the Federal Law, the false or incomplete finding of the legally relevant fact and the inadequacy can be contested with an appeal (Article 106 para. 1 Asylum Law).
The complaint is filed in due form and time; the complainant has taken part in the proceedings of the lower court, is particularly affected by the contested order, has a valid interest in the lifting or amendment and is therefore permitted to file the complaint (Article 105 Asylum Law in conjunction with Article 37 Federal Administrative Court Act and Article 48 para. 1, Article 50 and 52 Administrative Enforcement Act). The complaint is to be acted upon.
According to Article 2 para. 1 of the Asylum Law, Switzerland principally grant asylum to refugees. A refugee is a person who in their native country or in the country of last residence is subject to serious disadvantages or has a well-founded fear of being exposed to serious disadvantages for reasons of race, religion, nationality, membership of a particular social group or political opinion. Serious disadvantages include a threat to life, physical integrity or freedom as well as measures that exert intolerable psychological pressure (Article 3 Asylum Law).
Anyone who applies for asylum must prove or at least credibly demonstrate their refugee status. Refugee status is credibly demonstrated if the authority regards it as proven on the balance of probabilities. 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. (Article 7, Asylum Law).
In regard to the examination, whether the lower court refused the refugee status and rejected their asylum application rightly, it is initially to be examined in a first step, whether the recited reasons for flight, which caused the departure from the home country, are to be deemed valid in their entirety.
The BFM predominantly argues in the contested order with the missing asylum-relevance of the presence of the complainant and primarily refers to the possibility of an escape within the state, which would entail that the complainant does not rely on the protection of Switzerland. The complainant does not seem to be part of the group, which is at risk of persecution by the LTTE. At the same time the BFM refers to inconsistencies in the in the information of the complainant in its order, without further clarification. Within the exchange of documents the BFM refers to many specific elements, which were not credible, in the presentation of the complainant’s case (namely the failure to submit evidence for the support of the complaint to the police and contradictions related to the injuries obtained during the training). Furthermore, the descriptions of the extortion of funds by the Karuna group are said not to be substantiated.
The complainant essentially counters these elements of reasoning, he is said to have gotten in the sight of the Sri Lankan authorities, which was made clear by the attack on him in Colombo. A nationwide hazardous situation is said to be assumed, which is why he did not have any alternatives of flight or residence internally. He put the key circumstances of the incident, regarding the extortion of funds by the Karuna group, on record in a credible way.
The complainant has neither been summarily interrogated about his reasons for asylum at the airport nor in the reception and proceeding centre (EVZ) in Kreuzlingen. When he was asked for further remarks in Kreuzlingen, he allowed brief claims to be recorded, which he was not able to present at the airport. For the evaluation of the trustworthiness of the actual asylum claims and their refugee law relevance, only the further remarks in the record of the EVZ as well as the record of the hearing of the BFM of October 26 2006 shall be used.
The complainant argued that he was forced to complete a month-long LTTE training, during which he obtained scars. As part of the further remark he gave in Kreuzlingen, he indeed mentioned the scars, but did not elaborate further on these. At his interrogation on October 26 2006, he was explicitly asked about the causes of these scars, whereupon he put on record that he received one scar because he had to crawl or do rolls on the ground; the second scar was a result of a fall (see A21 p.4).
In his submission of December 6 2006 the complainant explained that the injuries suffered at the shoulder and elbow can be attributed to blows he received during the LTTE training in February 2006. To support this claim he submitted a doctor’s certificate of November 30 2006, in which the examining doctor points out that these scars are definitely caused by blows.
The BFM pointed out inconsistencies, regarding the suffered abuse, in their consultation process of May 22 2007.
The Federal Administrative Court affiliates to this valuation of the lower court and states that the complainant did not give understandable, divergent information for the cause of the physical scars. At the BFM interrogation, the complainant unequivocally traced the scares back to the training and the exercises (crawling on the ground, doing rolls) he completed. At no point did he mention any kind of abuse or infliction of physical violence by LTTE officers in this context, as he claimed later, during his statement of December 6 2006 and June 12 2007. If the evaluation, which is based on the observations which were made by the examining doctor in the submission of December 6 2006, is correct, it is not comprehensible why the complainant did not allude at any point to the blows, which were violently inflicted upon him, by the LTTE officers, but confined himself to name only the trainings as the cause for the physical scars.
In view of these inconsistencies, there are already serious doubts to the accuracy of the complainant’s submissions of fact, regarding the compulsory completion of the LTTE training.
The complainant continued to report that he was summoned to enter the LTTE by force and claims a risk of persecution in this context. Hereto, he further contends that he received a threatening letter from the LTTE of (…) 2006 (see A21, p. 5 and 6). This letter is said to have been ripped in rage by his father, which is why the complainant could not bring any evidence, which would support this statement. If the LTTE really had an interest to the portrayed extent in his person at the time in question, it remains uncertain why the organization left it at this letter, when they simultaneously had had the possibility to collect the complainant from home and readily take him in custody. In the face of these descriptions of the complainant, the recited LTTE’s interest in persecuting him also does not seem reasonable and does not have to be regarded as very likely and therefore has to be qualified as implausible.
Finally, also the descriptions of the incident of August 10 2006 in Colombo, during which an attack was said to be committed on the complainant by armed persons, have to be qualified as unrealistic and predominantly unlikely.
On the one hand, it is hardly conceivable that the homeowner – when the offender’s gun was drawn – is said to have risked his own life by beating the shooter’s hand or turning the shooter’s hand the other way, as described by the complainant (see A21, p. 9). On the other hand, it remains to be determined that the lawyer or notary, who issued the letter of confirmation of (…) 2006, does mention the incident, however from the overall context it shows that he cannot lead his descriptions back to own experiences because he was not present at the shooting. From the writing it emerges to a greater degree that it was issued on demand of the complainant’s brother, which is why it has to be assumed that the writing was issued as a favour without significant probative value. The complainant proceeded to claim on (…) (A21, p. 21) or on (…) (A18, p. 6) that he filed a corresponding criminal complaint with the police in Colombo, where neither him nor his relatives were able to secure the corresponding police records. The complainant, however, obviously also did not take any action to adduce further evidence to support the incident in Colombo, for example a confirmation by the homeowner concerning this matter. Also, no more evidence was adduced to support his claim of September 26 2008 that other relatives were arrested. In this context it should be noted that in the notice of appeal of November 30 2006 (see Point 19, p.9) recited disappearance of the complainant’s brother, there was no evidence at all documented to this day, even though a written confirmation was expected and the prospect of submitting the corresponding documents was provided.
For the purpose of an interim finding, it is to be noted that the complainant neither completed a month-long LTTE training and suffered from the allegedly resulting abuse and the LTTE’s targeted interest in persecuting him, nor did he show that the alleged personal attack in Colombo and the resulting official persecution of his family members were predominantly credible.
Within his inquiries, the complainant stated that he has managed two shops in his hometown (E._______ and F._______). The BFM does not question this statement. The Federal Administrative Court, also, has no reason to generally doubt the complainant’s business activity.
The complainant deduces a situation of persecution by the LTTE or Karuna group from this business activity. Concerning this he explains that he belongs to the risk group, which got into the LTTE’s sight because he is a wealthy businessman. Because of his financial resources he is said to be exposed to a very high risk of blackmail or a physical threat as well as abduction, imprisonment, torture and even homicide (see submission of September 26 2008, Point 7). He concretely brings forth that he received a blackmail letter from the Karuna group und hereto submits a confirmation letter of the person in charge of the district of the “Home for Human Rights in G._______"
For the recited receipt of a blackmail letter from the Karuna group, the complainant stated during the inquiry that he did not look at the writing closely (A21, p. 6). After the complainant simultaneously recited that the danger threatening him in Sri Lanka, mostly emanates from the Karuna grouping (see appeal submission, Point 18, p.9), which is said to list him on their death list and which is also said to be responsible for the attack on himself in Colombo with a very high likelihood, the presented lack of interest in the contents of the allegedly received blackmail letter by this grouping, astonishes. If the complainant bases his reasons for the departure from the home country primarily on the circumstance that he fears a persecution by the Karuna group, it remains implausible why he could not describe the indications, which could indicate to such a context, more closely. The submissions in context with the alleged receipt of a blackmail letter or a “death list” have to be qualified as implausible.
This valuation, however, cannot be classified as a sufficient element of incredibility in the overall context of the complainant on its own, which would generally exclude a persecution of the complainant by the Karuna grouping, namely because of his business activity.
After the complainant claims that he is part of the risk group because he is a wealthy shop owner, an analysis of the general, current security and political situation in Sri Lanka intrudes, to assess this submission.
As part of this judgement, it is therefore appropriate to deal with the current situation in Sri Lanka and namely to enlarge upon the incidents which took place after the latest analysis of the situation of February 2008 (see leading decision/Grundsatzurteil of February 14 2008, published in BVGE 2008 Nr. 2) and the resulting developments (contemplation/Erwägung 7) and namely to check, if necessary, if there are any groups of people which are subjected to a particular danger to be persecuted or cannot use state protection in this context by security forces or other groupings (contemplation/Erwägung 8).
For the following compilation of development since the ending of the civil war in May 2009 and for the presentation and assessment of the current situation in Sri Lanka, a variety of national and thematic reports as well as international, foreign and Swiss non-governmental and governmental organizations, as well as foreign and domestic press reports. The following, in alphabetical order, mentioned documents were particularly used and were also taken in to consideration for the assessment of the situation. Provided that other sources were used in the analysis, they will be named explicitly in the text.
-  Amnesty International Report 2010: The State of the World’s Human Rights; Sri Lanka;
-  Danish Immigration Service (DIS): Human Rights and Security Issues concerning Tamils in Sri Lanka; Report from DIS fact-finding mission to Colombo, Sri Lanka, 19 June to 3 July 2010; October 2010;
-  Human Rights Watch (HRW): World Report 2011 and 2010: Sri Lanka: Events of 2010 (respective 2009)
-  HRW: Sri Lanka: Legal Limbo; The Uncertain Fate of Detailed LTTE suspects in Sri Lanka, February 2010;
-  International Crisis Group (ICG): The Sri Lankan Tamil Diaspora after the LTTE, Asia Report No. 8 – 23. February 2010;
-  ICG: War Crimes in Sri Lanka, Asia Report No. 191 – 17. May 2010;
-  Swiss Refugee Help (SFH): Sri Lanka: Current Situation, Update, Rainer Mattern 1. December 2010;
-  UK Home Office, UK Border Agency: Country of Origin Information Report Sri Lanka, 11. November 2010 and 18. February 2010;
-  UNHCR: Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 5. July 2010;
-  U.S. Department of State: 2010 (respective 2009). Country Reports on Human Rights Practices; 2010 (respective 20090 Human Rights Report: Sri Lanka, 8. April 2011 and 11. March 2010
On May 19 2009, the government of Sri Lanka officially announced the victory of government forces over the LTTE, and president Rajapakse declared the war, which has been going on for 26 years, to have ended. In August 2009, the Sri Lankan government started organizing the release and return of about 280 000 people from the camps of internally displaced people, who were forced to leave their ancestral homelands during the final phase. It is estimated by the UNHCR that until Mid-June 2010 nearly one quarter of a million people had left the camps for internally displaced people, to return to their places of origin or to find shelter with host families, relatives or friends. Several people, who were able to leave the camps, are still living as internally displaced people in the country after their homes are destroyed or mine clearances are conducted and in some cases a return is hindered by disputes over land ownerships. Approximately 11 000 people, who are suspected to have connections to the LTTE, were situated in rehabilitation centres (see UNHCR 2010 [Source 9]. p.1 and 2; UNHCR Global Report 2009, Sri Lanka, p. 230). According to media reports, the leaders of the LTTE were completely eliminated. There are no leads for active LTTE cadres in the north of Sri Lanka, according to Swiss Refugee Help (SFH). The Army and the Sri Lankan police have excavated large LTTE arsenals. The highest-ranking LTTE cadres were either imprisoned or killed (as was the LTTE leader Velupillai Prabakharan), or they were able to leave the country. According to UNHCR, approximately 9 000 suspected former LTTE cadres were still situated in camps in May 2010 (see UNHCR [Source 9], p.4). The former LTTE commander Vinayagamoorthy Muralitharan, also known as Karuna, left the Tamil Makkal Viduthalai Puligal (TMVP), which he had founded, in March 2009 and affiliated to the Sri Lankan Freedom Party (SLFP) of President Rajapakse. Today Karuna is the Vice President of the SLFP. The TMVP is now led by Karuna’s former factional opponent and present Chief Minister of the eastern province, Sivanesathurai Chandrakanthan, alias Pillayan. The TMPV are said to have their sight namely on business people to finance their cadres because money lacks (see SFH, 2010 [Source 7], p. 6 ff). There are no signs that the LTTE is still able to attack security forces or to perform other attacks (see Neue Zürcher Zeitung [NZZ] of October 16 2010: Nach dem Krieg ist vor dem Krieg in Sri Lanka; SFH 2010 [Source 7], p. 6). It is therefore to be expected that there will be no more acts of persecution by the LTTE at the present time and that this organization or its leading people cannot appear as followers anymore.
In 2010, political developments of importance took place in Sri Lanka. On December 26 2010 President Mahinda Rajapakse (UPFA, United People’s Freedom Alliance) was re-elected with 57.8%of the votes and has further cemented his state power. He won against his opponent, the former army chief Sarath Fonseka (DNA, Democratic National Alliance), who had a 40.1% share of the vote. During the parliamentary elections on April 8, 2010, the UPFA won 144 of the 255 seats (60.3% of the votes), whereby the two-thirds majority, which is necessary for constitutional amendments, was narrowly missed. Meanwhile President Rajapakse successfully obtained the six missing mandates by concessions and benefits to opposition politicians.
In September 2010, the 18th
Amendment was adopted by using the “urgent bill” with the participation of several oppositional member of the parliament: This amendment repeals the term limit in terms of time of presidency, empowers the President to fill key positions within the government and overrides consisting control mechanism of separation of powers. This shows that there is no more functioning separation of powers, particularly since the President refuses to abide by the decisions of the Supreme Court (see SFH 2010 [Source 7], p.1; ROBERT C. OBERST, Countries at the crossroads, Sri Lanka, 2010, p. 66 ff., http://www.freedomhouse.org/uploads/ccr/country79229.pdf visits on June 15
, 2011; Le Monde diplomatique from September 10 2010: Sri Lanka and the 18th
org/2010/09/02/the18thamendmenttotheconstitutionprocessandsubstance/, visits on December 14 2010, NZZ from September 9 2010: Sri Lankas Präsident gewinnt weiter an Macht).
The political direction was clear after the victory speech of the president. He explained that there will be no minorities anymore in Sri Lanka, but only persons who love their motherland (patriots) and who don’t love their motherland (traitors) (from: The Sunday Leader on the 16th. August 2009: Sri Lankan politics without race or religion: Will it be politics?, http://www.thesundayleader.lk/archive/20090816/serendipity.tm, visited on the 26th. January 2011).
The then General Sarath Fonseka who was involved in the warfare against the LTTE and is mainly responsible for their defeat has resigned from his military functions in December 2009. It came to a split between president Rajapakse and Fonseka after Rajapaksa claimed the destruction of the LTTE as his own work. Following this, Fonseka joined the politics and was the main opponent to Rajapakse for the presidential election in January 2010. Shortly after Fonseka’s defeat against Rajapakse, Fonseka was arrested because he was accused by the acting Defence Minister Gotabaya Rajapakse (the brother of Mahinda Rajapakse) of participating in war crimes in the final stages of the war. The arrest was sharply criticised by international human rights groups.
Fonseka had to take responsibility in front of a military court for alleged corruption, taking part in a conspiracy, high treason and as well as for “interference in politics”. He was then found guilty and sentenced for 30 months in prison with forced labour for violating the rules of tendering for army personnel. At the same time he lost his seat in parliament and his civil rights. The ex army general can in addition not joint the next general and presidential elections any more. Observers are assuming a politically motivated lawsuit (zum Ganzen: NZZ Online from the 11th. February 2010: Fonseka ruft in Sri Lanka zur Ruhe auf; http://www.nzz.ch/nachrichten/politik/international/sri_lanka_fonseka_1.4910773.html?video=1.7505853
; NZZ Online from the 30th. September 2010: Wahlverlierer in Sri Lanka politisch kaltgestellt, http://www.nzz.ch/nachrichten/politik/international/sri_lanka_wahlverlierer_1.7755468.html; both visited on the 15th. December 2010).
Rajapakse is systematically going against the followers of his then challenger since his re-election. Several high officers and other members of the armed forces who were close to Fonseka were dismissed and dozens in the opposition were arrested. According to the responsible for Asia from Human Right Watch, president Rajapakse is obviously paying off with his opponents. It is feared that these events are the start of a systematic smear campaign with which critical votes are to be silenced (from: NZZ from the 5th. February 2010: Jagd auf Regierungskritiker in Sri Lanka).
Any critique from anyone on the proceedings of the government is seen or punished as an enemy of the state or as “LTTE Propaganda”. So was for example the UNICEF spokesperson James Elder expelled from Sri Lanka for his comments on the civil war. He also referred to the children in the conflict zone who went through “unimaginable hell” and suffered disproportionately. He also called on the government to loosen the tight restrictions for humanitarian Organisations to access the Tamil refugees. (Times Online on the 7. September 2009: Unicef worker James Elder expelled from Sri Lanka over media comments, http://www.timesonline.co.uk/tol/news/world/asia/article6824039
. ece, visited on the 14th. December 2010).
Both parties to the civil war are accused of war crimes (ICG [Source 6] S.1). UN Secretary Ban Ki Moon spoke in favour of an international investigation at an unofficial meeting of the Security Council and explained there were serious allegations of human rights abuses by the Sri lankan government and the Tamil rebels. (NZZ Online, 06 June 2009: Kriegsverbrechen in Sri Lanka
ban_ki_moon_1.2686874.html, visited on 14. Dezember 2010)
In response to the demands for an independent international investigation, the GOSL announced a truth and reconciliation commission, which is supposed to prove what lessons can be learnt from the events between February 2002 and May 2009. The UN General Secretary tasked a panel of experts with the mandate to give recommendations in regards to the accountability for the alleged violations of international human rights and crimes against humanity in the final phase of the conflict. According to the official website of the Sri Lankan Government, the setting up of the Panel of Experts was a ‘unjustified and unnecessary involvement in the affairs of a sovereign state’ (vgl. UNHCR 2010 [Source 9],
S.3.). Those in power in Colombo reacted swiftly: The members of the panel were denied entry to Sri lanka. A short while after, the UN Development agency (UNDP) building in Colombo was beleaguered by a minister of the government along with hundreds of supporters and commenced a hunger strike. In response, Ban Ki Moon withdrew his envoy from Colombo and closed the UNDP office (vgl. NZZ vom 12. August 2010: Sri Lankas ungesühnte Kriegsverbrechen;
NZZ vom 19. April 2011: Kritik der UNO an Sri Lanka, mit Verweis auf
from 31. March 2011: Report of the SecretaryGeneral's
Panel of Experts on Accountability in Sri Lanka,
Cr1=# und http://www.un.org/News/dh/infocus/Sri_Lanka/
POE_Report_Full.pdf, both accessed on 27. April 2011).
President Rajapakse established the Lessons learnt and reconciliation Commission (LLRC) in order to avoid the international pressure to investigate war crimes. The procedure of the commission was, according to media reports, not conducive to an investigation of war crimes, but aimed to white wash these. International human rights organization hence declined to testify before the LLRC, as the commission did not fulfill basic international standards (vgl.
NZZ from 18. Oktober 2010: Keine glaubwürdige
In spite of the end of the civil war and the noted decrease of human rights violations in 2010 (vgl. United
Kingdom Foreign & Commonwealth Office: Human Rights and
Democracy: The 2010 Foreign & Commonwealth Office Report: Sri
Lanka, S. 282 ff.), the state of emergency was still in place in August 2011, even though President Rajapakse was reported to have announced the lifting of the emergency regulations (vgl. NZZ Online
from 25. August 2011, accessed on 29. August 2011). Some conditions were lifted in May 2010, including those concerning curfews, propaganda activities, the printing and distributing of material supportive of terrorism, and those that limited rallies and meetings that were deemed as a threat to national security (vgl. dazu: UNHCR 2010 [Source 9], S. 4).
The emergency regulations concerning detention without trial however stayed in place (vgl. BBC News vom 5. Mai 2010: Sri Lankan emergency laws relaxed, http://news.bbc.co.
uk/2/hi/8661394.stm, besucht am 14. Dezember 2010).
The government of Sri Lanka however, defended the continued extensions of the emergency regulations with the supposedly existing danger of a renewed threat by former cadres of the LTTE, supported from outside the country (vgl. NZZ from 16.
Oktober 2009: Nach dem Krieg ist vor dem Krieg in Sri Lanka; IRIN
[Integrated Regional Information Networks] from 4. August 2010: Sri
Lanka: Amnesty says emergency rule must end, http://www.unhcr.org/refworld/
docid/4c5c10521a.html, accessed on 26. Januar 2011).
How the announced lifting of emergency regulations will be implemented remains to be seen. It is unclear what would happen to the thousands of people who are currently imprisoned under the emergency regulations.
In summary it is held that according to far reaching agreeing reports, overall the situation since the end of the military conflict between the Sri Lankan Army and the LTTE in May 2009, has improved considerably.
The LTTE is considered militarily destroyed. The security situation has significantly stabilized (vgl. UNHCR 2010 [Quelle 9], S. 1), even though the country is still in a development process.
However, at the same time, the human rights situation has deteriorated considerably, especially in regards to freedom of speech and media freedom.
Political opponents of any distinction are regarded as enemies of the state and have to put up with persecution.
According to the current general political, security and human rights situation in Sri Lanka, the Federal Administrative Court comes to the conclusion that, in respect to groups at risks, personal circles have to be defined; whose members have a higher risk of persecution.
Individuals suspected of current or previous involvement with the LTTE, even after the end of the civil war, are at higher risk of persecution (vgl UNHCR 2010 [Source
9], S. 3 und 5; HRW [Source 4], S. 6 ff.).
Individuals that are viewed as political supporters of the former General Sarath Fonseka by the government are also deemed to be at risk of persecution. (see:
According to “Reporters sans Frontiers” (RSF), in spite of the end of the armed conflict in the country, continued restrictions of media freedom and independence exist.
The organization describes Sri Lanka as one of the most dangerous places in the world for independent journalists. In the last press freedom index, the country occupies 158th
place, out of a total of 178 (see RSF: Press
Freedom Index 2010),
html, accessed 26. Januar 2011).
The access to certain regions of Sri Lanka continues to be restricted. Journalists and other media workers, who account for reports about delicate topics, are subject to the same repressive treatment as opposition critical of the regime. This also affects international and local representatives of NGOs, that engage for human rights and criticize violations. The repression against media workers and activists critical of the government has hardly decreased (see in full: UNHCR 2010 [Quelle 9], S. 5 ff.; RSF, World Report 2010 – Sri
Lanka, 9. March 2010, http://en.rsf.org/spip.php?
page=imprimir_articulo&id_article=36634, accessed 12. April
2011; Human Rights Watch from 10.March 2010: Sri Lanka: End Witch
Hunt Against the Media and NGOs; Government Intensifies Campaign to
Discredit Civil Society, http://www.hrw.org/en/news/
print, accessed 26. January
2011; Amnesty International 2010 [source 1], S. 303).
According the Federal Administrative Court, victims or witnesses to human rights violations during and after the war, and people who complain about violations have to expect reprisals and persecution by Sri Lankan security forces.
Amnesty International mentioned as an example in the annual report from 2010, the arrest of 5 medical doctors who became eyewitnesses of killings during the conflict (see Amnesty International 2010 [Source 1], S. 303).
In this context it has to be determined that violence against women, through the intensification of the conflict during the end phase, especially in the north and east of the country, has increased.
In spite of the end of the military conflict, reports indicate, women continue to be subject to gender specific sexual violence.
Reports have been made about rapes committed by members of the armed forces in the north of Sri Lanka, where many women are head of their households. Women in IDP camps and prisons are also thought to be victims of rape and sexual violence by security personnel, through which they themselves have become witnesses to massive crimes and sexual violence.
The existing laws, criminialising domestic violence and other forms of violence against women, are not implemented effectively (see UNHCR 2010 [Quelle 9], S. 7 ff.; U.S. Department of State 2010 [Source 10], United Kingdom Foreign & Commonwealth Office, March 2011, a.a.O., S. 292).
It is also reported that the Eelam People’s Democratic Party (EPDP) and the People’s Liberation Organisation of Tamil Eelam (PLOTE), continue to recruit and children for specific tasks, e.g. the surveillance of offices. Till today there has been no investigation or trials for cases of child recruitment (see. UNHCR 2010 [Source 9], S. 8 und Fn. 60, with further links). This category also falls under the at-risk-groups of victims and witnesses of human rights violations.
In regards to the situation of Tamils in Switzerland, the question arises whether it can be generally assumed that deported Tamil asylum seekers, who return to Sri Lanka from the Swiss diaspora, will be regarded as dissidents or opposed to the government due to their long absence from the country, specifically their prolonged residence in Switzerland.
In this context it has to be determined that the LTTE is declared as a terrorist organization by both the EU (see Council Decision 2010/386/CFSP of 12 July 2010
updating the list of persons, groups and entities subject to Articles 2, 3
and 4 of Common Position 2001/931/CFSP on the application of specific
measures to combat terrorism; Official Journal of the European Union, L
178, Volume 53, from 13. July 2010) and the US (see: U.S.
Department of State, Country Reports on Terrorism 2009, from 5. August
s/ct/rls/crt/2009/140900.htm, both accessed on 1. Februar 2011).
Switzerland has not classified any organization save Al Quaeda, as such (see:
Antwort des Bundesrats vom 31. Mai 2006 auf die Anfrage von
Nationalrat Filippo Leutenegger, Anfrage 06.1018 NahostEngagement
des Bundes. Gefährliche Hilfe?).
In mid-January 2011, the federal prosecutor initiated a country-wide operation against members of the LTTE, which resulted in the arrest of 10 individuals, who according to media reports belonged to the main financiers of the war and shared responsibility for Switzerland being the main financial centre for the purchase of weapons and ammunition (see: Medienmitteilung der Bundesanwaltschaft vom 11. Januar 2010: Illegale Geldbeschaffung – Schlag gegen Exponenten in der Schweiz; NZZ Online vom 11. und 26. Januar 2011: Grosse Razzia gegen tamilische "Befreiungstiger", http://www.nzz.ch/nachrichten/politik/schweiz/grossrazzia_gegen_exponenten_der_ltte_1.9231553.html, und: Grossrazzia gegen Exponenten der LTTE, http://www.nzz.ch/nachrichten/politik/schweiz/schweiz_razzia_tamil_tigers_1.9064770.html, sowie Neue Luzerner Zeitung Online vom 31.Januar 2011: Die Erben der Tiger, http://www.luzernerzeitung.ch/nachrichten/politik/schweiz/art331,70737d, accessed on 31.
Although, according to the court, it can’t generally be assumed that deported Tamil asylum seekers from Switzerland on their return to Sri Lanka will be under suspicion by the authorities for having contacts with leading LTTE cadres.
Neither the UNHCR nor any other organizations have advised on a threat on this matter (see: DIS 2010 [Source 2], S. 9 f., these assumptions are related to Tamil deportees from the EU and not specifically from Switzerland)
But this does not rule out that deported Tamil asylum seekers could be accused of having close contacts with LTTE cadres in individual cases, which could indicate a concrete threat to them.
The assumption, in connection to this specific danger, cannot be made generally, but is reliant on individual circumstances. Thus this aspect has to be proven per case. The closer the affected person is to the above named risk groups, the higher is the risk of danger, of being accused by the Sri Lankan authorities of maintaining undesired political contacts and activities and thus be prosecuted and affect their consideration for asylum.
Under some circumstances, people who have considerable financial means, have to be classified as another risk group, as their relatives are at high risk of being subject to blackmail, kidnap and other persecution. The report of the Danish Immigration Service names the pro-government paramilitaries of the EPDP, PLOTE, TELO and EPRLF as perpetrators of kidnappings of business owners and other wealthy individuals in the north of Sri Lanka (see: DIS 2010 [Source 2], S. 12 ff.).
In this regard it is held that the Federal Administrative Court has already spoken about the ‘White Van’ phenomenon in its Grundsatzentscheid (policy decision) BVGE 2008 Nr. 2: During the civil war, in both government and rebel held areas, these (majority white) vans appeared which coincided and was connected with an increase in the numbers of disappeared. Not every abduction was political. Increasingly wealthy business men were targeted, namely by the (then) Karuna faction, which was mostly linked to financial interests of the groups concerned. These abductions were passively covered and tolerated by the security forces (police and military); sometimes the security forces themselves were accuse dof the abductions, namely in Colombo. Above all, the inaction by the Sri Lankan authorities in solving these crimes was especially striking. Protection from these abductions by the police was non-existent and the crimes were almost never solved (see: BVGE 2008 Nr. 2 E. 7.2.4). Similar abductions are still occurring although on a reduced scale. The targets are mainly local business owners, but the origin of the abductors remains unknown. There are recent reports of such ‘white van’ abductions (see: LankaNewspapers.com from 7. January 2011: Srilankan State Sponsored Crimes against Humanity, http://www.lankanewspapers.com/news/2011/1/63477_space.html, accessed on 2. February 2011). The protection from abductions by paramilitaries from the government in the north-east can today at best be described as inefficient and limited. In addition, the police and military authorities in the east of Sri Lanka enjoy a high level of impunity (see:
zur Rolle der regierungstreuen paramilitärischen Gruppierungen bzw. zur
Schutzgewährung vor entsprechenden Übergriffen: DIS 2010 [Source 2],
S. 12 ff. and 34 ff.). Deported Sri Lankan asylum seekers, who return to their homeland, have to be considered part of this risk group, if they have access to extensive finances.
All individuals who are part of this risk group have to have the motives for persecution carefully examined during the examination of their refugee status. If the persecution is exclusively due to financial interests, this aspect has to be taken into consideration during the assessment of the obstacles to the removal.
However the situation is not the same in all parts of the country:
According to various reports, the situation in the Eastern province has largely stabilized and normalized. Although there are increasing reports about criminal activities (namely kidnaps and targeted burglaries of wealthy individuals), and the general assumption is that the criminal acts are committed by members of paramilitary groups who to a certain extent have the backing of the Sri Lankan security forces.
The relationship between the different ethnic groups in the east is relatively relaxed. The Tamils and Muslims in the East however still fear ‘sinhalisation’ of the east.
Police presence is said to be comparable to that of Colombo (see: UK Home Office 2010 [Source 8], S.55). The security restrictions in Trincomalee have noticeably decreased. The security situation in Batticaloa has also improved, although the city still has a high military presence.The relaxed security situation in the east since 2009 is also noticeable by the local population and advancement is recognizable. Infrastructure is being expanded (Building of new roads and bridges as well as electricity and communications connections). The Minority Rights group (see Minority Rights Group International Report: No war, no peace: the denial of minority
rights and justice in Sri Lanka, 2011, S. 14) speaks of large plans for development projects in this context.
The Federal Administrative Court therefore holds, together with the BFM, that due to the general situation in the eastern province, removals to the whole of the province are reasonable.
13.2.1 In areas that have been under government control for a relatively longer period of time, namely Jaffna District and the southern parts of Vavuniya District as well as Mannar Distract, everyday life seems to have returned. The situation in Jaffna has specifically significantly improved after the high way A9 (main route between Kandy in the Central Province to Jaffna) was reopened in November 2009 and led to a relaxation of the supply situation. The military presence in Jaffna has decreased, remains to however still be visible at every street. Simultaneously, police and civil institutions have taken over or adopted functions and tasks from military agencies (see DIS 2010 (Source 2), P.10-11). According to UNOCHA, the UN has good access to return areas in the North. Progress in those areas is said to impressive. Some schools were reopened and hospitals refurbished, whilst there are still some lacks identifiable amongst the basic needs of the population, in addition to the limitations put upon economic engagements. The UNHCR puts emphasis upon the significant issue of access to land and living space for the returnees; the UNHCR and other organizations in Mannar, Jaffna, Vavuniya, BAtticoloa and Trincomalee provide legal assistance free of charge for returnees to support these in legal affairs. However, not all regions are covered by this system (compare to DIS 2010 (Source 2), P.24).
The named areas (Jaffna District and the southern part of Vavuniya District and Mannar, differently expressed: the Northern Province except the so-called “Vanni area”; for a definition and area assessment of the “Vanni area” compare Erwägung 12.2.2) are not coined by situations of general violence and the local political situation is not tensed enough, for a return to be generally considered to be untenable. In light of the humanitarian and economic fragile situation, an individual tenability assessment needs to be made in relation to possible deportations. Besides the general tenability (e.g.: socioeconomic and medical aspects, child welfare etc. (compare: BVGE 2009/28 E. 9.3, S 367ff.)), an additional focus and weight needs to be put upon the element of time.
188.8.131.52. For persons who derive from the Northern Province and who have left the area only after the end of the civil war in May 2009, deportation back into these areas is generally to be judged as tenable. This should however only be considered if the concerned person can access similar and equal living and residential situations as the ones he/she had when departing and the deportation to not be hindered by anything else.
184.108.40.206. If the stay of the concerned person in the Northern Province dates back further (prior to the end of the civil war in May 2009) or if concrete circumstances of a great change of living conditions since his/her departure can be identified from the case files, it remains of urgent need to carefully clarify the tolerability of a possible deportation of the concerned person. In this case the Federal Court of Justice calls the existence of a sound social network, concrete ways to secure the existential minimum for living as well as residential situations to be crucial factors. If such contributive factors are absent in the Northern Province, the tolerability of a inter-state residency in the rest of the state territory, namely in the greater area of Colombo needs to be assessed upon (compare: Erwägung 13.3).
13.2.2. In the so-called “Vanni area” the situation is significantly dire. To date, up to 180 000 IDPs are said to have returned to the Vanni area. They live today in precarious conditions. People lack of adequate foundations of life. The Vanni area is highly militarlized.
220.127.116.11 The term “Vanni area” is used in various contexts differently and refers to different geographic areas, which are not confined and defined through precise provincial- or district borders, or through topographical circumstances (mountain chains, water paths). Henceforward, in a report of “Minority Rights Group International” the Vanni area is described as a region, which composed the administrative districts of Kiliniochchi, Mullaithivu and Vavuniya (compare: Minority Rights Group 2011, a.a.O., P.8). Wikipedia on the other hand calls “Vanni” a term for the mainland part of the Northern Province of Sri Lanka, which encompasses “the entire larger area of Kilinochchi District (compare: http://en.wikipedia.org/wiki-/Vanni_(Sri_Lanka)
, visited on April 11, 2011). In a more traditional definition, Vanni refers to an electoral area, which compromises the areas of Mannar, Mullaithivu and Vavuniya in the North of Sri Lanka.
In the given context of interest, the “Vanni area” compromises the region, which remained in January 2008 to be under LTTE control after the Government of Sri Lanka renounced the cease-fire agreement of 2001. It composes the area, which became the battle ground till the final defeat of the LTTE. This LTTE respective “Vanni area” compromises the district of Kilinochchi and Mullaithivi (including both cities) as well as the Northern parts of Mannar and Vavuniya District, and a small strip of the Eastern coast of the Jaffna District South of Nagarkovil. The cities of Mannar and Vavuniya, as well as Jaffna and the Jaffna peninsular remain to be outside of the “Vanni area”. The “Vanni area” was at that point demarcated from the Government controlled areas by a southern and northern frontline (“Forrward Defence Line”; FDL). The Northern FDL was located at the southern part of the Jaffna Pensinular south of the Kilali-Muhamalai-Nagarkovil nexus. The area along the FDL was heavily occupied by military forces on both sides.
The Southern FDL bordered in the South the town of Adampan (on the mainland in the Western aprt of the Mannar district) along the highway A 14 and A 30 until the town of Pandisurichchan. There onwards the line was drawn northwards the city of Vavuniya and the towns of Vellankulam and Vannankulam until the checkpoint Omanthai. Thereon the southern FDL was to be found further in Southeastern direction until the town of Madukanda. From there to the border of the Northern Province/North Central Province until the great irrigation lake Padawiya (Padaiwya Tank) towards the North until the Southeastern town Paddikkudiyiruppu and finally the Kokkilai bird reservoir at the East coast into the Kokkilai Lagoon (comparevgl. zum Ganzen: Ministry of Defence, Battle Progress Map, updated 18. Mai 2009, www.defence.lk/orbat/Default.asp, besucht am 6. April 2011; Ministry of Defence, The Battle Progress; Chronology of Humanitarian Advances into nonliberated
02, besucht am 11. April 2011).
18.104.22.168 The infrastructure of the here defined area of the „Vanni area“ has largely been affected by the very heavy impact of war. Most of the house are destroyed, access to schools and hospitals aggravated. The area remains to be highly mined and militarized. It remains to be under control of the PTF (Presidential Task Force). International Aid Organisations only have very limited access to the areas.
22.214.171.124 Based on the previous elaborations the Federal Court of Justice rules in agreement with the BFM (compare Vernehmungslassung May 1st
2011) that the deportation into the Vanni area remains to be classified as unacceptable based on the current conditions of the area, namely the at large destroyed infrastructure and the mining (compare Ministry of Defence, Demining
And Resettlement Map, updated 10. April 2011, www.defence.lk/Demine/,besucht am 15. Juni 2011). People who origin in those areas need to be assessed upon, whether there are according to the ruling acceptable alternatives of residency. In the context of Sri Lanka, an acceptable inter-state alternative residency for a person who origins from the Vanni area in another part of Sri Lanka is linked to the aspects of an existing sound family and social network as well as chances of a secured income and residency.
13.3. For people who derive from the remaining areas of Sri Lanka (this means: the North Central Province, North Wester, Centra, Western (namely: the greater area of Colombo), Southern, Sabarugamuwa and the Uva Prince) and are returning to these areas, a deportation is generally to be seen as acceptable.
The complainant hails from B._____ (Northern Province), in the southern part of the G_____ district. This territory has been under government control for several years and is not located in the above define ‘Vanni’ region.
The complainant had an above average education (3 years of college and one year long K.____ in Colombo; see A 17, p8&9) and several years of experience as a shop owner. After his education he worked in his father’s business and consequently ran two businesses himself. During the questioning he stated that his parents and (…) siblings live in Sri Lanka (Parents and three sisters in B.____, one brother in P.____, and one brother in Q._____ (see A.18, p 3). The corresponding, repeated declarations from the questioning by the BFM (Bundesamt fur Migration – Federal Bureau for Migration) on 1 March 2011 were not contradicted by him, nor did he state in view of his reply from 26 April 2011 that these conditions do not exist today, hence the logged disclosures from 2006 are still to be put aside.
Due to the personal circumstances of the complainant it is assumed that favourable factors exist.
It is assumed that the complainant would encounter an existing, supportive and familiar circle if returned to Sri Lanka.
Even if his own shops are not in existence anymore today, the rebuilding of an economic foundation should be possible.
During resettlement in B_____ or nearby Q____, where one of his brothers live, his relatives could possibly support him. Although the complainant has been away from the country for several years, since September 2006, no concrete grounds exist that he would face an existential crisis on return to Sri Lanka. If the complainant will not consider reintegration in the northern province due to personal reasons, it has to be held that he also has a brother in P.____ in the central province. He would therefore be at liberty to go there. The brother and his wife are, according to testimony, students and live (…) (see A21, p12). Even if the complainant cannot move in with his brother, the assumption can be made that he can find a permanent place to stay with his help. The fact that the complainant is well integrated in Switzerland and economically independent cannot be considered, as according to Art. 14 Abs. 2 Bst. C AsylG, the cantonal authorities are responsible for scrutinising the efforts at integration for the purpose of gaining a residence permit, rather than the asylum authorities.
The complainant can therefore not draw from the respective evidence (Employer’s reference, Debt Registry Extract etc) for his asylum process.
After what has been said it is evident that the completion of expulsion is reasonable.
Finally, competent representation of the home country for the travel documents needed for the return are the responsibility of the complainant (see. Art. 8 Abs. 4 AsylG), so that the completion of expulsion can be described as possible (Art. 83 Abs. 2 AuG).
In summary in can be determined that the BFM has qualified expulsion as permissible, reasonable and possible. After what has been said, an arrangement for preliminary admission is beyond consideration (Art. 83 Abs. 14
From these considerations it can be held that the contested deportation does not break federal law, the legally relevant facts are accurate, recorded and appropriate (Art. 106 AsylG). After what has been said the complaint must be dismissed.
Due to this result the cost of the proceedings will be imposed on the complainant (Art. 63 Abs. 1 VwVG) and are set at CHF 600
(Art. 1 3 des Reglements vom 21. Februar 2008 über die Kosten und Entschädigungen
vor dem Bundesverwaltungsgericht [VGKE, SR 173.320.2]).
These costs are charged to the advance paid on 30 January 2007 which was for the same sum.
Therefore, the Federal Administrative Court holds:
The appeal is dismissed.
The clompainant is liable for the legal costs amounting to CHF. These costs are charged to the advance paid on 30 January 2007 which was for the same sum.
This ruling goes to the legal representative of the complainant, the
BFM and the responsible cantonal migration authority.
The Presiding Judge: The court clerk:
Christa Luterbacher Sandra Bodenmann