Belgium - Council for Alien Law Litigation, 24 April 2013, No. 101488
Keywords:
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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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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Real risk
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. 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. |
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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:
The CALL ruled that the discrimination or ill treatment suffered by homosexuals in Senegal did not amount to all homosexuals of Senegalese origin having reason to fear persecution in Senegal on the sole basis of their sexual orientation.
Facts:
The Applicant, of Senegalese nationality, stated that he was homosexual. His sister had caught him kissing his partner in his bedroom and he had been shut up in a room in the house for a number of days without food and drink. The Applicant was nonetheless freed by one of his friends and left Senegal. Before submitting an application for asylum in Belgium, he lived in Spain for a year and a half without submitting an application for protection.
The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refused to recognise refugee status. In particular, it cast doubt on the credibility of the Applicant’s sexual orientation as well as on the evidence of persecution put forward. Moreover, the CGRS found that it was not clear from the objective information before it that all homosexuals could claim to be persecuted in Senegal on the sole basis of their sexual orientation.
The Applicant lodged an appeal against this adverse decision.
Decision & reasoning:
The CALL found that the contested decision did not contain sufficient relevant grounds for challenging the Applicant’s credibility in relation to his homosexual relations and that there were sufficient indications of the fact of his homosexuality to justify giving him the benefit of the doubt on this point.
The CALL nonetheless found that the contested decision was correct in relation to the persecution the Applicant said he had suffered by reason of his sexual orientation.
The CALL found that the lack of credibility of the Applicant’s statements in relation to the persecution referred to did not obviate the need to carefully consider the possible existence of a fear of persecution which could be established by the facts of the case that were regarded as proven. Since the homosexuality and nationality of the Applicant were not in doubt, what had to be assessed was whether the discrimination and ill-treatment that homosexuals were subject to in Senegal was such that any homosexual of Senegalese origin had grounds to fear persecution in Senegal on the sole grounds of his sexual orientation.
On the basis of the information submitted by the two parties, the CALL concluded that Senegalese legislation made homosexual acts a criminal offence, that the stigmatizing of homosexuals was a reality there and was supported by persons enjoying a degree of authority ; however, save for one or two specific cases, criminal prosecutions were not particularly common. The CALL also found that a homosexual who was the victim of homophobic ill-treatment at the hands of the general population could not reasonably count on protection from the authorities.
The CALL nonetheless considered that it did not follow that in Senegal the homophobic actions reported were such as to be deemed, by reason of their seriousness, repeated nature or accumulation, to amount to persecution within the meaning of Article 48 (3) of the 15 December 1980 Act and that at present, all homosexuals could rely on reasons to fear persecution on the sole grounds of their sexual orientation.
The CALL nevertheless called for very great care to be taken when considering applications for international protection based on sexual orientation submitted by Applicants of Senegalese origin: the benefit of the doubt should freely be given and particular attention should be paid to the possible consequences of a return to the country of origin.
Outcome:
The appeal was rejected; refugee status and subsidiary protection status were denied.
Observations/comments:
Conseil du Contentieux des Etrangers (Trois juges : WILMOTTE-LOUIS-VERDICKT)CCE, arrêt n°101.488