France - National Court of Asylum (Cour Nationale du Droit d’Asile), 29 October 2015, Mr. H., N°15006472
| Country of Decision: | France |
| Country of applicant: | Bangladesh |
| Court name: | National Court of Asylum (the “CNDA”) |
| Date of decision: | 29-10-2015 |
| Citation: | CNDA, 29 October 2015, Mr. H., N° 15006472 C+ |
Keywords:
| Keywords |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
Headnote:
A person, with a well-founded fear, within the meaning of the Geneva Convention, of being harmed by their family if they return to their country of origin because they are a member of a particular social group and are unable to rely on effective protection from the state, may be entitled to claim refugee status.
Facts:
The applicant, a homosexual Bangladeshi citizen (the “Applicant”), was harmed, disowned and expelled from his neighbourhood, his high school and his parents’ home. He also suffered from an attempted punitive expedition. Fearing for his life, the Applicant fled Bangladesh to seek refuge in France in December 2013.
Due to an error in entering his address by the French Office for the Protection of Refugees and Stateless Persons (Office Français de Protection des Réfugiés et Apatrides) (the “OFPRA”), the Applicant was not duly summoned to a personal interview to provide an explanation regarding his application for protection. His application was therefore denied by the General Director of OFPRA on 21 November 2014. The Applicant then appealed to the CNDA.
As part of the evidence provided by the Applicant in support of his application before the CNDA (the “Application”), the Applicant, in order to prove that he was homosexual, presented, without the consent of the third party, recordings and photographs of intimate moments between the Applicant and that third party.
Decision & reasoning:
The applicant was not interviewed by OFPRA
The CNDA held that it is not relevant to rule on the issue of a lack of an interview.
Asylum application
1) The requirement to belong to a particular social group
The CNDA concluded that where a person seeks the benefit of refugee status due to their sexual orientation, the asylum judge should consider whether, under the conditions prevailing in the applicant’s country of origin, persons with a similar sexual orientation may be regarded as a social group. That consideration must take into account, (i) how persons with a similar sexual orientation are perceived by society or institutions; and, (ii) whether members of that group may have well-founded fear due to their belonging to this group. That consideration must be sufficiently precise and take into account, where appropriate, the particular circumstances of this perception of different members of that group.
2) Application of the criteria to homosexual Bangladeshis
The CNDA concluded that due to the perceptions of Bangladeshi society and institutions, homosexual Bangladeshi citizens must be considered a social group within the meaning of the Geneva Convention. This is because members of that social group suffer degrading treatment, physical attacks, rapes, forced evictions from public places, extortions and acts and threats of violence, without being able to efficiently claim the protection of the state as the authorities refuse to record their complaints.
3) Inadmissibility of recordings and photographs of intimate moments of an applicant as proof of homosexuality
The CNDA concluded that European legislation does not permit, in the course of examining an asylum application, OFPRA and the CNDA to accept and take into account elements of proof potentially negatively affecting an applicant’s or a third party’s human dignity. Therefore, such proof is not admissible before the court.
The CNDA concluded that the sincere, credible, concrete and detailed explanations of the Applicant, as well as other evidence provided, established, (i) that the Applicant was homosexual; (ii) that the Applicant had lived in Bangladesh; and, (iii) that, due to his membership of a particular social group and being unable to claim effective protection from the state if he were to return to his country of origin, the Applicant should be regarded as having a well-founded fear, within the meaning of the Geneva Convention, of being harmed by his relatives.
Outcome:
The CNDA overturned the General Director of OFPRA’s decision of 21 November 2014 and granted refugee status to the Applicant.
Observations/comments:
Relevant information:
· Recommendation CM/Rec(2010)5 of the Committee of Ministers to the Member States on measures to fight discrimination on grounds of sexual orientation or gender identity, dated 31 March 2010, in particular article X 43 on the fact that Member States should ensure that applicants are not sent to a country where their life or freedom would be threatened or where they would face the risk of torture, inhuman or degrading treatment or punishment, due to their sexual orientation or gender identity;
· Conseil d’Etat (French Council of State), 23 August 2006, Case n° 272680, on the necessity for the Refugee Appeals Board (formerly the CNDA) to check whether it had sufficient facts regarding the situation of homosexuals in Ukraine to consider them to be a social group. Homosexuals in Ukraine were deemed to be a social group because, due to the common characteristics defining them from the perspective of Ukrainian society and authorities, such individuals were likely to face threats within the meaning of the Geneva Convention. These threats permitted homosexuals in Ukraine to be granted refugee status;
- Jurisclasseur, Fasc. 233-70, updated on 1 October 2016, page 16, n°59 et seq., on persecutions due to membership of a particular social group.
This case summary was written by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 711-2 |
Other sources:
Article 377 of the Bangladeshi Criminal Code
Bangladeshi Criminal Procedure Code
Dhaka Metropolitan Police Ordinance
US State Department Bangladesh Human Rights Country Report, 25 June 2015
Global Freedom House, Country Report, Bangladesh, 31 March 2015
Global Rights Defence, Boys of Bangladesh “The Invisible Minority: The situation of the LGBT community in Bangladesh.”
UK Home Office Country of Origin Information Report, 2013
International Lesbian Gay Bisexual Trans and Intersex Association (ILGA), “State sponsored Homophobia. A World Survey of Laws: criminalisation protection and recognition, same-sex love”, May 2015