Belgium – Council for Alien Law Litigation, 7 March 2011, Nr. 57.425

Country of Decision:
Country of Applicant:
Date of Decision:
Nr. 57.425
Court Name:
Council for Alien Law Litigation
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The CALL held that the examination of credibility should not overshadow the actual question, i.e. whether the applicant has reasons to fear persecution. In this case the benefit of the doubt was given to the applicant. Refugee status was granted on the basis of a well-founded fear of persecution for being homosexual (membership of a particular social group).
The applicant, of Mauritanian nationality, filed an asylum application arguing that he had run into problems in his country of origin because of his homosexuality. According to his statements, his family and friends had discovered that he was having a homosexual relationship; he had been arrested and detained; he had admitted his sexual orientation to the police under torture; and after 5 days he managed to escape from the police station.

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 noted first of all that the CGRS had never questioned the applicant’s homosexuality. The CGRS had expressed doubts about the reality of his relationship and about the way in which the applicant would have behaved at the police station, etc., but had not questioned that the applicant was homosexual. Moreover, before the CALL the applicant had produced a document from a Belgian LGBT organisation confirming his involvement in the organisation. The CALL therefore accepted that the applicant was homosexual.

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.
Refugee status was granted to the applicant.