Belgium - Council for Alien Law Litigation, 17 October 2012, No. 89927
Keywords:
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
Headnote:
The CALL held that the fact the Applicant had already suffered very severe genital mutilation (type III – infibulation) was a serious indicator of a well-founded fear of persecution due to her membership of a particular social group.
Facts:
The Applicant, of Guinean nationality and Fula origin, stated that she was the victim of a forced marriage. After the death of her parents she and her two younger sisters went to live with her paternal uncle. She was obliged to give up her work as a nurse. Her uncle and aunt forced her into marrying a friend of her uncle’s. She refused and managed to run away on the evening of the religious ceremony.
The Office of the Commissioner-General for Refugees and Stateless Persons (CGRS) refused to recognise the Applicant’s refugee status on grounds that her account was not credibile. The CGRS based its decision on three grounds: objective information (forced marriage is a marginal phenomenon in Guinea and almost inexistent in urban areas); incoherent statements by the Applicant (as to the reason why her uncle wanted to force her into marriage); and lack of action on the part of the Applicant to attempt to prevent the marriage or to put an end to it.
In relation to the medical documents lodged at the time of her asylum application testifying to a type III excision and a deinfibulation, the CRGS held that at no time had the Applicant expressed a fear linked to genital mutilation in the event of returning to her own country, either on her own initiative or when questions had been put to her in relation to her medical evidence.
The Applicant appealed against this negative decision.
Decision & reasoning:
The CALL rejected the argument that the Applicant had not declared having undergone a serious genital mutilation. The CALL found that the persecutions alleged by the Applicant were clearly established by the medical evidence lodged on file, which testified to the seriousness of the excision undergone (type III : infibulation) as well as the consequences arising from this mutilation. The CALL held these acts directed against persons on account of their gender to be a persecution within the meaning of Article 1 A of the Refugee Convention.
During the hearing before the CALL, the Council expressly questioned the Applicant on the subject of the excision. She explained that, at the age of 7, she had undergone a type III excision, and that she had been deinfibulated by a doctor in Guinea during a training period as part of her nursing studies. Given the permanent trauma caused by this mutilation, as well as the physical after-effects retained by the Applicant, the CALL reiterated that the fact that an Applicant has already suffered serious harm is considered a serious indicator of his/her well-founded fear of being persecuted, in accordance with Article 57/7bis of the Belgian law of 15 December 1980 regarding the entry on the territory, the stay, the settlement and the removal of aliens (transposing Article 4, section 4 of the Qualification Directive).
As the agent of persecution was a non-state actor, the CALL then considered whether the Applicant could expect effective protection from the Guinean authorities. Given the Applicant’s profile and the fact that it was likely she would have to return to a family who rejected her, the CALL concluded that she could not rely on protection from the national authorities if she were to return to Guinea.
Finally, the CALL connected the Applicant’s fear of persecution to her membership of a particular social group. Referring to the jurisprudence of the former PRAC (Permanent Refugee Appeals Commission) and of the UNHCR Guidelines on membership of a particular social group, the CALL decided that acts of sexual violence towards persons - such as genital mutilation - could be inflicted solely because of their gender. In such situations, the CALL decided that ‘membership of a particular social group’, in this case, Guinean women, should be applied as a reason for persecution.
Outcome:
Appeal allowed: recognition of refugee status.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
- UNHCR, Sexual and Gender-Based violence against Refugees, Returnees and Internally Displaced Persons, Guidelines for prevention and Response, March 2003, p. 113, section 9
- UNHCR, Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 07-05-2002, p. 4, section 12.