Belgium - Council for Alien Law Litigation, 17 October 2012, No. 89927

Country of Decision:
Country of Applicant:
Date of Decision:
17-10-2012
Citation:
CCE, arrêt n° 89927
Court Name:
Council for Alien Law Litigation (HAYEZ)
National / Other Legislative Provisions:
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 48/3
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikel 48/5
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikel 57/7
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Headnote: 

The CALL held that the fact the Applicant had already suffered very severe genital mutilation (type III – infibulation) was a serious indicator of a well-founded fear of persecution due to her membership of a particular social group. 

Facts: 

The Applicant, of Guinean nationality and Fula origin, stated that she was the victim of a forced marriage. After the death of her parents she and her two younger sisters went to live with her paternal uncle. She was obliged to give up her work as a nurse. Her uncle and aunt forced her into marrying a friend of her uncle’s. She refused and managed to run away on the evening of the religious ceremony.

The Office of the Commissioner-General for Refugees and Stateless Persons (CGRS) refused to recognise the Applicant’s refugee status on grounds that her account was not credibile.  The CGRS based its decision on three grounds: objective information (forced marriage is a marginal phenomenon in Guinea and almost inexistent in urban areas);  incoherent statements by the Applicant (as to the reason why her uncle wanted to force her into marriage); and lack of action on the part of the Applicant to attempt to prevent the marriage or to put an end to it.

In relation to the medical documents lodged at the time of her asylum application testifying to a type III excision and a deinfibulation, the CRGS held that at no time had the Applicant expressed a fear linked to genital mutilation in the event of returning to her own country, either on her own initiative or when questions had been put to her in relation to her medical evidence.

The Applicant appealed against this negative decision.

Decision & Reasoning: 

The CALL rejected the argument that the Applicant had not declared having undergone a serious genital mutilation. The CALL found that the persecutions alleged by the Applicant were clearly established by the medical evidence lodged on file, which testified to the seriousness of the excision undergone (type III : infibulation) as well as the consequences arising from this mutilation.  The CALL held these acts directed against persons on account of their gender to be a persecution within the meaning of Article 1 A of the Refugee Convention.

During the hearing before the CALL, the Council expressly questioned the Applicant on the subject of the excision. She explained that, at the age of 7, she had undergone a type III excision, and that she had been deinfibulated by a doctor in Guinea during a training period as part of her nursing studies. Given the permanent trauma caused by this mutilation, as well as the physical after-effects retained by the Applicant, the CALL reiterated that the fact that an Applicant  has already suffered serious harm is considered a serious indicator of his/her well-founded fear of being persecuted, in accordance with Article 57/7bis of the Belgian law of 15 December 1980 regarding the entry on the territory, the stay, the settlement and the removal of aliens (transposing Article 4, section 4 of the Qualification Directive).

As the agent of persecution was a non-state actor, the CALL then considered whether the Applicant could expect effective protection from the Guinean authorities. Given the Applicant’s profile and the fact that it was likely she would have to return to a family who rejected her, the CALL concluded that she could not rely on protection from the national authorities if she were to return to Guinea.

Finally, the CALL connected the Applicant’s fear of persecution to her membership of a particular social group. Referring to the jurisprudence of the former PRAC (Permanent Refugee Appeals Commission) and of the UNHCR Guidelines on membership of a particular social group, the CALL decided that acts of sexual violence towards persons - such as genital mutilation - could be inflicted solely because of their gender. In such situations, the CALL decided that ‘membership of a particular social group’, in this case, Guinean women, should be applied as a reason for persecution.

Outcome: 

Appeal allowed: recognition of refugee status.

Other sources cited: 

-  UNHCR, Sexual and Gender-Based violence against Refugees, Returnees and Internally Displaced Persons, Guidelines for prevention and Response, March 2003, p. 113, section 9

- UNHCR, Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 07-05-2002, p. 4, section 12.