France - CNDA, 7 July 2009, Mr. C., n°634565

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Country of Decision:
Country of Applicant:
Date of Decision:
07-07-2009
Citation:
CNDA, 7 juillet 2009, n°634565, M.C.
Court Name:
National Asylum Court / Cour Nationale du Droit d'Asile (CNDA)
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law)
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Headnote: 

Homosexuals in Tunisia, even those that do not proclaim or overtly demonstrate their sexual orientation, can be considered as constituting a specific and sufficiently identifiable whole so as to form a group whose members would face a risk of persecution for reasons of common characteristics which define them in the eyes of the Tunisian authorities and society. 

Facts: 

Mr. C., an applicant from Tunisia, originates from the East of the country and grew up in a rural and traditional environment. He was ostracised because of his homosexuality. In 2003, he refused to marry the woman imposed by his father and he was beaten. As an employee of the Tunisian Shipping Company, in November 2004 he was caught engaging in a homosexual act with a passenger. His superior threatened to denounce him. He escaped from the ship in Marseilles. The French Office for the Protection of Refugees and Stateless Persons (OFPRA) Ofpra rejected his asylum application. He challenged this negative decision before the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA).

Decision & Reasoning: 

The Court declared that, in the conditions which currently prevail in Tunisia, persons who have homosexual relations face criminal lawsuits. For this reason, they are also exposed to police and family violence, in particular in rural areas.

Consequently, the situation of homosexuals in Tunisia, even though they do not proclaim or overtly demonstrate their sexual orientation, can be considered as constituting a specific and sufficiently identifiable group whose members would face a risk of persecution for reasons of common characteristics which define them in the eyes of the Tunisian authorities and society.

The court found in the present case, the fears which the applicant may reasonably feel if returned to his country of origin, given what he already suffered because of his sexual orientation, must be regarded as linked to his membership of a particular social group as defined in Article 1A(2) of the 1951 Refugee Convention.
 

Outcome: 
The applicant was recognised as a refugee.
Observations/Comments: 

This CNDA decision is interesting because, contrary to many other decisions relative to LGBs in various countries of origin (some of which are also summarized in this data base), the CNDA does not require that the applicant manifests his characteristic by his external behaviour (see comment in CNDA, 23 December 2010, Mr. K., n°08014099).

Other sources cited: 

Article 230 Tunisian Criminal Code