Belgium – Council for Alien Law Litigation, 29 April 2011, Nr. 60.622
Country of Decision:
Country of Applicant:
Date of Decision:
29-04-2011
Citation:
Nr. 60.622
Court Name:
Council for Alien Law Litigation
Keywords:
Relevant Legislative Provisions:
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
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Headnote:
The CALL held that the examination of credibility should not overshadow the actual question of whether the applicant has reasons to fear persecution. In this case, refugee status was granted on the basis of a well-founded fear of persecution, by way of a forced marriage and a second excision (Female Genital Mutilation (FGM)).
Facts:
The applicant, of Guinean nationality, filed an asylum application based on two grounds: (1) the fact that her aunt, with whom she was living, had arranged a wedding for her and that the applicant wanted to escape from a forced marriage, and (2) the fact that her aunt wanted her to undergo another act of FGM because of that wedding (the excision she had undergone as a child was not done “properly” and, in view of the marriage, it needed to be redone).
The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application, referring to the lack of precision in the applicant’s statements as well as a serious lack of knowledge regarding the person she was to marry. According to the CGRS neither the marriage proposal, nor the circumstances in which the applicant was to undergo another excision, could be considered established. Regarding the fear of a second excision, the CGRS also observed that, according to the information it had at its disposal, a second excision was only performed during the healing period of the first excision, and adult women have the possibility to oppose such second excisions.
The applicant filed an appeal against this decision.
Decision & Reasoning:
The CALL found that the examination that the CGRS had made of the case was superficial. According to the CALL the lacunae in the applicant’s statements could be explained in a reasonable manner and the statements were not lacking entirely in consistency and credibility. The CALL then observed that it was not contested that the applicant had undergone only a partial excision of the clitoris, meaning that it was still possible to inflict on her another injury of the same nature by proceding to a total removal of the clitoris, or even worse. The CALL also observed that, even if a re-excision might generally be done in the days following a first intervention, the possibility of a re-excision in view of a marriage was not excluded.
More in general the CALL repeated that “the question that is to be answered in the phase of the examination of the eligibility to refugee status is to know whether the applicant has reasons to fear persecution based on one of the grounds listed in the 1951 Refugee Convention or not. While the assesment of credibility that is usually done generally constitutes a necessary step in order to answer that question, it must be avoided that this step overshadows the question itself. In cases where there is a doubt regarding the reality of certain facts or the sincerety 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.”
In the case at hand the CALL believed that the reality of both the forced marriage and the second excision that the applicant was trying to escape were sufficiently established in the light of her statements and the elements of the file. The alleged acts constituted threats of persecution, based on the applicant’s belonging to a particular social group, i.e. the group of women.
The CALL also referred to article 57/7 of the Belgian Aliens Law (transposition of Art 4.4. of the Qualification Directive) and observed that the applicant benefited from a presumption of a well-founded fear, and that it was up to the CGRS to show that the situation had evolved in such a manner that it has taken away the grounds or reality of the the alleged fears, which the CGRS had not done.
Outcome:
Refugee status was granted to the applicant.
