France – National Court of Asylum, 31 May 2017, Mr. O., No. 16014463

Country of Decision:
Country of Applicant:
Date of Decision:
31-05-2017
Citation:
National Court of Asylum, 31 May 2017, Mr. O. v OFPRA, No. 16014463
Court Name:
National Court of Asylum (‘Cour nationale du droit d’asile’)
National / Other Legislative Provisions:
France - Code of Entry and Residence of Foreigners and of the Right of Asylum ('CESEDA’) – Article L. 733-1-1 & Book 7
France - Law 91-647 of 10 July 1991
France - Decree 91-1266 of 19 December 1991
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Headnote: 

An applicant may be granted refugee status under Article 1 of the 1951 Geneva Convention for fear of persecution based on sexual orientation. This depends on whether or not, according to the conditions prevailing in the country of origin, persons sharing a sexual orientation may be regarded as a social group within the meaning of the Convention.

Facts: 

Mr. O. left Mongolia on 23 August 2015. He claimed to personally fear persecution for his homosexuality.

Upon arrival in France on 11 September 2015, he applied for asylum through the French Office for the Protection of Refugees and Stateless People (‘OFPRA’).

The OFPRA rejected his application in a decision given on 26 January 2016. He appealed to the National Court of Asylum (‘CNDA’) in order to be granted refugee status or, in the alternative, subsidiary protection.

Decision & Reasoning: 

1. The requirement to belong to a particular social group

The CNDA held that persons of a similar sexual orientation may be regarded as a social group under the meaning of the Geneva Convention, Article 1. This will depend upon the conditions prevailing in the relevant country, namely: (i) whether persons of a similar sexual orientation are perceived by society or its institutions in such a way that they represent a discernable social group; and (ii) whether members of that group may have well-founded fear of persecution as a result of their belonging to it.

The CNDA further noted that the granting of refugee status on these grounds should not be predicated on public behaviour. This is because: (i) the social group in question is not created by its members nor as a result of their objective characteristics, but rather is a product of society or its institutions; and (ii) the applicant might partly or fully conceal his or her sexual orientation in order to avoid persecution at home. This second point applies whether or not there exists specific legislation against homosexuality, as persecution may take place by other means.

2. Application of the requirement to Mongolian LGBTI community

The CNDA held that although homosexuality is not criminalised in Mongolia, homosexual Mongolian citizens should be considered a social group under the meaning of the Convention. Multiple sources confirm that the Mongolian LGBTI community suffers extensive discrimination and acts of physical violence, both within families and on a wider societal level, in schools, universities, health services, workplaces and more. Furthermore, victims are unable to efficiently claim the protection of the State, as the authorities frequently fail to record their complaints and indeed themselves perpetrate acts of physical violence.

3. Application of the requirement to Mr. O.’s circumstances

The CNDA held that the Applicant would be entitled to refugee status because:

(i) His files and declarations, notably those made during the closed-door hearing, provided evidence that he belonged to the social group of homosexuals in Mongolia. He had offered a coherent and consistent account of his sexual orientation and his reasons for leaving the country, including of his family’s hostility towards him; and

(ii) If he returned to Mongolia, he would be at risk of further persecution without having recourse to the protection of the State. His declarations confirmed that he had been subject to threats and physical violence prior to leaving, and the current conditions in Mongolia were such that he remained at risk. 

Outcome: 

Appeal granted. The CDNA overturned the OFPRA decision of 26 January 2016 and granted Mr. O. refugee status. 

Observations/Comments: 

This case summary was written by Georgia Kandunias, GDL student at BPP University. 

Other sources cited: 

·         UN and USAID joint report, ‘Being LGBT in Asia: Mongolia country report’ (2014)

·         Interview published in UB Post, ‘LGBT Centre executive director N. Anaraa talks LGBT rights, then and now’ (18 May 2016)

-         US Department of State report, ‘Mongolia 2016 Human Rights Report’ (3 March 2017)