An Afghan national, claiming to be an unaccompanied minor, requested international protection in Switzerland on 24 December 2020. In support of his application, he claimed that he was forced to join the local militia when he was 12 years old but he was deemed too young to take part in fighting, so he was employed in the kitchen for three and a half years. He held that the work he did was dangerous and tiring, and that he had been sexually abused on several occasions by drug addicts. He also claimed that his father worked in the political field and had consequently enemies that were responsible for the explosion that killed him. Finally, he expressed concerns of persecution due to his ethnicity.

On 15 April 2021, the State Secretariat for Migration (SEM) rejected the application for international protection on the ground that the motives invoked were not relevant and there was no risk of future persecution in the event of his return to Afghanistan. The SEM argued that his enlistment as a cook assistant was not based on the grounds of race, religion nationality, political opinion or membership to a particular group and therefore he was not personally and specifically targeted. It also explained that the applicant's fear of being confronted again with sexual abuse was not supported by any concrete evidence. The SEM found that the applicant had never mentioned any personal problems in connection with his father's alleged activities and his assertions that his father had enemies were based solely on unsubstantiated assumptions. 

On 12 May 2021, the applicant filed an appeal before the Federal Administrative Court requesting refugee status, and in the alternative, that the case be referred back to the SEM for further examination. In support of his argument, the applicant referred to the UNHCR guidelines according to which the forced recruitment of a child under 18 years of age into armed forces of the State or armed group separate from the State constitutes specific persecution of children. Although he had not been specifically targeted by the law enacted in his village, which had affected all his families, he was the only one for which its application constituted a ‘violation of objective law', as the recruitment of minors was illegal in Afghanistan. The applicant claimed that, if returned, he would be at risk of being forcibly re-enlisted by the local militia and/or disciplined for absconding.

The Federal Administrative Court (FAC) considered that the question of whether the applicant belonged to a particular social group (children forcefully recruited) was no longer relevant because there was no evidence to support the applicant's fear of being recruited again upon return, or even of being subjected to disciplinary sanction because of his desertion. Specifically, the court considered it unlikely that the local militia would still be active, given the changes that had occurred in Afghanistan since his departure and the takeover of the Taliban. 

Moreover, according to an EUAA Afghanistan: Country Focus Report, cited by the FAC, there were no attacks recorded against the Taliban by the armed political opposition groups since November 2023. Since these groups are mainly active in the North and North-East of the country, the existence or activity of local militias in the applicant's region was considered highly unlikely. Therefore, the applicant's need for protection no longer appeared to be present.

In addition, the court found that the mere involvement of the applicant in the popular defence of his region was not sufficient to establish a risk profile of persecution from the Taliban. The applicant did not claim to have been researched by the Taliban, and his participation had occurred more than four and a half years ago and only in auxiliary tasks.

As regards the sexual abuse perpetrated by drug addicts, the court agreed with the SEM findings that these claims had no nexus with the grounds for international protection. Finally, it found that his mere membership of the Hazara ethnic group did not constitute a decisive ground capable of giving rise to a fear of future persecution since the very high conditions laid down by the case-law for admitting collective persecution of the Hazaras in Afghanistan was not met. Moreover, he never claimed to have encountered problems in Afghanistan because of his ethnicity.

For those reasons, the appeal was dismissed.