France - CNDA, 16 December 2008, Mlle S., n°473648

Country of Decision:
Country of Applicant:
Date of Decision:
16-12-2008
Citation:
CNDA, 16 décembre 2008, Mlle S., n°473648
Additional Citation:
Cour nationale du droit d’asile, 16 décembre 2008, Mlle S., n°473648
Court Name:
National Court of Asylum/Cour nationale du droit d’asile (CNDA)
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.712-1
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Headnote: 

It is important to inquire whether there are elements relative to the situation of homosexuals in their country which enable them to be considered as forming a group whose members would face a risk of persecution, for reasons of common characteristics which define them in the eyes of the authorities and society.

Facts: 

The applicant from the Ukraine, faced hostility, harassment and attacks because of her homosexuality. She did not lodge a complaint with the authorities because of the generalized hostility of police officers towards gay people in Ukraine despite the decriminalization of homosexuality. She left the Ukraine in April 2003. After a first asylum application which was rejected both by the French Office for the Protection of Refugees and Stateless Persons (Ofpra) and by the Commission des Recours des Réfugiés (Refugee Appeals Commission) (CRR), she lodged a subsequent application which was rejected by the Ofpra. She therefore challenged this negative decision before the Cour Nationale du Droit d’Asil (National Asylum Court) (CNDA).

Decision & Reasoning: 

Firstly, the Court recalled the provisions of Article 10.1 (d) of the Qualification Directive. It added that regarding the situation of homosexuals, it was important to inquire whether there were elements relative to their situation in their country which enabled them to be considered as forming a group whose members would face a risk of persecution, for reasons of common characteristics which define them in the eyes of the authorities and society.

In the present case, the Court considered that while the allegations of the applicant enable the Court to consider her as a member of a group whose members share common characteristics which define them in the eyes of the Ukrainian authorities and society, however the acts from which she suffered were not serious enough to be considered as persecution within the meaning of the 1951 Refugee Convention. The Court added that if homophobic views existed in the Ukraine, the discrimination, harassment and isolated attacks which the members of this social group may face do not have any systematic, constant and repeated character.

The Court concluded that the fears alleged by the applicant in case of return cannot be considered as well-founded.

In addition, the Court considered that it did not appear from the case file that the applicant would personally face a serious threat as defined in Article L.712-1 Ceseda [which transposes Article 15 of the QD] in case of return.

Outcome: 
The claim was rejected.
Observations/Comments: 

In this decision, the Court did not seem to require that the applicants manifest their sexual orientation by their external behavior but the definition includes persecution. See comments under CNDA, 23 December 2010, Mr. K., n°08014099