Belgium - Council for Alien Law Litigation, 9 September 2009, Nr. 31.311

Belgium - Council for Alien Law Litigation, 9 September 2009, Nr. 31.311
Country of Decision: Belgium
Country of applicant: Gambia
Court name: Council for Alien Law Litigation
Date of decision: 09-09-2009
Citation: Nr. 31.311
Belgium_010 decision (0.13Mo)

Keywords:

Keywords
Actors of protection
Membership of a particular social group

Headnote:

This case concerned the differentiation that the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) and the CALL make between homosexual acts committed for economic reasons (prostitution) and homosexual acts committed because of a person’s sexual orientation. The distinction was challenged by the applicant; however, the CALL did deal with this aspect of the applicant’s claim as they dismissed the appeal on adverse credibility findings.

Facts:

The applicant a Gambian national, earned money in The Gambia as a prostitute for male tourists. He submitted that his family discovered this and threatened to kill him. The applicant fled to Belgium and filed an application for asylum. The CGRS rejected his application finding that the applicant was not a homosexual by orientation; that his problems were primarily related to his family; and that he had not plausibly argued that the Gambian authorities were actually persecuting him. . The applicant lodged an appeal against this decision with the CALL, but this appeal was rejected on a procedural basis (both the applicant and his counsel were absent at the hearing). The applicant subsequently filed a second asylum application, with the support of the Belgian Refugee Council (BRC).

The BRC argued that the applicant had engaged in homosexual activities and could be persecuted on the basis of existing laws in his country of origin, independently of the question of whether the applicant’s sexual orientation was homosexual or not. At issue were the acts the applicant engaged in and the perception that had been created. The BRC further argued that the family as “actor of persecution” was not given appropriate consideration.

The CGRS, however, dismissed the appeal again and ruled that the alleged problems had no relation to the applicant’s sexual orientation but rather to the (suspicion of) homosexual activities that he had engaged in for purely economic motives and personal opportunism. The CGRS considered that it was reasonable to expect that the applicant could remove or exclude the risk of personal persecution by no longer engaging in such activities. Persisting in risky and illegal behaviour for economic and opportunistic reasons could not, according to the CGRS, justify a grant of international protection. The CGRS also considered that the problems were related to the applicant’s family and that it was not proven that there were problems with the authorities in his country of origin. The applicant filed an appeal against this decision.
 

Decision & reasoning:

The applicant argued before the CALL that the fact that he was not homosexual by orientation was irrelevant, because he was nonetheless being persecuted for the homosexual activities he had engaged in. According to the applicant many people in The Gambia now knew of his homosexual activities and his life was in danger because of that, irrespective of whether he had engaged in those activities because of his sexual orientation or for economic reasons. The applicant further argued that his problems were not purely linked to his family and that, even if the facts were only known to his family, he was unable to call for the protection of the authorities against his family (who had already threatened to kill him).

The CALL found that it had already considered the applicant’s case and it could therefore only consider the assessment of new elements, and whether the new elements called into question the findings of the GCRS. The CALL concluded that the finding of the CGRS could be upheld, notably that the applicant’s fear of persecution, because of his homosexual activities, was not plausible due to the lack of concrete and reliable  evidence showing that the applicant was under negative scrutiny by the Gambian authorities. The CALL did not examine the question of the relevance of the argument that the applicant was not homosexual by orientation but had only engaged in homosexual activities for economic reasons.
 

Outcome:

The appeal was rejected; refugee status and subsidiary protection status were denied.

Observations/comments:

This decision was selected because the CGRS’ standard argument, i.e. that the homosexual acts were committed for economic reasons (and not because of sexual orientation) and that the applicant can therefore not call on international protection, was challenged. The challenge was unsuccessful because it remained unclear in this particular case to what extent the authorities had knowledge of the homosexual activities of the applicant (and the CALL did not have to address the challenge as such). In many other, similar cases, however, dating from both before and after this decision, the CALL explicitly confirmed that “sexual activities with tourists and in exchange for payment have nothing to do with sexual orientation but are based on purely economic motives and personal opportunism. To persist in risky and illegal behaviour for purely economic and opportunistic reasons – and not because of one’s orientation – cannot justify a call for international protection.” See for example: CALL, nr. 59.603 (13 April -04- 2011).

Relevant International and European Legislation:

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