Belgium – Council for Alien Law Litigation, 7 March 2011, Nr. 57.425
| Country of Decision: | Belgium |
| Country of applicant: | Mauritania |
| Court name: | Council for Alien Law Litigation |
| Date of decision: | 07-03-2011 |
| Citation: | Nr. 57.425 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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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. |
Headnote:
Facts:
The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application on two grounds: (1) his statements were incoherent and lacked credibility (the CGRS did not believe the relationship the applicant claimed to have had), and (2) the information that the CGRS had at its disposal indicated that the risks for homosexual people in Mauritania were not as high (“capital punishment is de facto not applied”) and generalised (“there is no generalised phenomenon of social violence against homosexuals”) as the applicant had advanced.
The applicant filed an appeal against this decision.
Decision & reasoning:
The CALL then found that, independently from the credibility of the applicant’s account regarding the homosexual relationship that he claimed to have had, in order to examine the existence of reasons to fear persecution it must be examined what the foreseeable consequences were should the applicant return to his country of origin.
More generally the CALL repeated that “the question that is to be answered in the phase of the examination of the eligibility to refugee status is that of whether the applicant has reasons to fear persecution based on one of the grounds listed in the 1951 Refugee Convention or not. While the assessment of credibility that is usually done generally constitutes a necessary step in order to answer that question, it must be avoided if this step overshadows the question itself. In cases where there is a doubt regarding the reality of certain facts or the sincerity of the applicant, the statement of such doubt does not exempt one from considering in the end the existence of a fear of persecution that could be sufficiently established, despite that doubt, by other elements of the case that are otherwise considered certain.”
The CALL then examined the CGRS’s documents regarding the situation of homosexuals in Mauritania and found that the CGRS had somewhat misconstrued the information. The report that CGRS had relied on indicated that it had been particularly difficult to obtain reliable information on the topic in Mauritania, that there were very few reliable sources, etc. The CALL also underscored other caveats in the report: homosexuality is still a crime in Mauritania, even if the death penalty is not enforced; it cannot be excluded that capital sentences are applied in restricted groups it might be possible that convictions take place secretly; homosexuality can be an aggravating factor for other charges; homosexual people suffer from taunts in the street, etc. On that basis, the CALL found that the applicant could fear suffering persecution in case of a return to his country of origin. Even if there was a doubt regarding certain aspects of his account, in particular regarding the reality of the relationships he claims to have had, the CALL considered that there were sufficient indications of the well-founded character of the alleged fear in order to justify that the benefit of the doubt be given to the applicant.