Finland - Supreme Administrative Court, 13 January 2012, KHO:2012:1

The Supreme Administrative Court had to decide whether the Applicant, due to his sexual orientation, has a well-founded fear of being persecuted in his home country, Iran, or whether there exist substantial grounds for believing that he would be at real risk of suffering serious harm for the same reason.

According to the Supreme Administrative Court, if homosexuality as such would put the Applicant at risk as mentioned above, it remains to be considered whether it can be assessed that, in order to avoid the above mentioned risk, he should be expected to  behave in such a manner that his homosexuality would not become common knowledge.  When an asylum application relies on a risk of persecution due to   membership of a particular, minority social group , a view has to be taken first on whether the Applicant has credibly demonstrated that he is homosexual. The Applicant must then be able to show that, because of his sexual orientation, he has a well-founded fear of persecution after returning to his home country.  Sufficient grounds for the risk of persecution can be considered to exist if the applicant can credibly show that in his home country he is suspected of belonging to the alleged group and if his account of his recent past supports this belief.

The next individual assessment to be made is how a person might behave in his home country in various future situations, both in his private and public life, and also how, based on the knowledge gained from the country of origin information, the public authorities and private persons might react. If the conclusion of this assessment is that the Applicant has reason to fear persecution in his home country and if, from an objective point of view, this fear is justified, then the Applicant is entitled to asylum even though he could avoid persecution by keeping his sexual orientation secret.

Sexual orientation has to be considered to belong to human rights as part of the protection of private life. The purpose of international protection is to provide the protection that the country of nationality either cannot or is not willing to give against a justified risk of persecution. However, it is not intended to guarantee to a member of a sexual minority the same free and open behaviour in his home country as in the country of asylum. If an Applicant wants to keep his sexual orientation secret in his home country because of social, cultural or religious reasons and not because of a justified risk of persecution, there are no grounds for granting asylum. In the present case, the Applicant has established that he is homosexual.

According to the Applicant, when previously living in Iran, he had kept his homosexuality from his parents and relatives by personal choice prior to entering into the marital contract which brought to light his homosexual relationship. Reportedly, the Applicant’s sexual orientation was most likely revealed to the authorities at the latest when the Applicant’s mother was charged with hiding the Applicant.  After this, the choice to conceal his sexual orientation which he had been exercise to do prior to his marriage could no longer be considered to be in accordance with the objectives of The 1951 Convention relating to the Status of Refugees. 

Although the Applicant has not been able to give a reliable account regarding the alleged death penalty imposed on him, when deciding the case, it should have been considered whether the Applicant´s fear of being persecuted on account of his sexual orientation was well-founded or he was in danger of suffering serious harm in Iran, taking into account the up-to date country of origin information and all facts presented in the case.