France - National Court of Asylum (Cour Nationale du Droit d’Asile), 29 October 2015, Mr. H., N°15006472

Country of Decision:
Country of Applicant:
Date of Decision:
29-10-2015
Citation:
CNDA, 29 October 2015, Mr. H., N° 15006472 C+
Court Name:
National Court of Asylum (the “CNDA”)
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Headnote: 

A person, with a well-founded fear, within the meaning of the Geneva Convention, of being harmed by their family if they return to their country of origin because they are a member of a particular social group and are unable to rely on effective protection from the state, may be entitled to claim refugee status.  

Facts: 

The applicant, a homosexual Bangladeshi citizen (the “Applicant”), was harmed, disowned and expelled from his neighbourhood, his high school and his parents’ home. He also suffered from an attempted punitive expedition. Fearing for his life, the Applicant fled Bangladesh to seek refuge in France in December 2013.

Due to an error in entering his address by the French Office for the Protection of Refugees and Stateless Persons (Office Français de Protection des Réfugiés et Apatrides) (the “OFPRA”), the Applicant was not duly summoned to a personal interview to provide an explanation regarding his application for protection. His application was therefore denied by the General Director of OFPRA on 21 November 2014. The Applicant then appealed to the CNDA.

As part of the evidence provided by the Applicant in support of his application before the CNDA (the “Application”), the Applicant, in order to prove that he was homosexual, presented, without the consent of the third party, recordings and photographs of intimate moments between the Applicant and that third party.

Decision & Reasoning: 

The applicant was not interviewed by OFPRA

The CNDA held that it is not relevant to rule on the  issue of a lack of an interview.

Asylum application

1) The requirement to belong to a particular social group

The CNDA concluded that where a person seeks the benefit of refugee status due to their sexual orientation, the asylum judge should consider whether, under the conditions prevailing in the applicant’s country of origin, persons with a similar sexual orientation may be regarded as a social group. That consideration must take into account, (i) how persons with a similar sexual orientation are perceived by society or institutions; and, (ii) whether members of that group may have well-founded fear due to their belonging to this group. That consideration must be sufficiently precise and take into account, where appropriate, the particular circumstances of this perception of different members of that group.

2) Application of the criteria to homosexual Bangladeshis

The CNDA concluded that due to the perceptions of Bangladeshi society and institutions, homosexual Bangladeshi citizens must be considered a social group within the meaning of the Geneva Convention. This is because members of that social group suffer degrading treatment, physical attacks, rapes, forced evictions from public places, extortions and acts and threats of violence,  without being able to efficiently claim the protection of the state as the authorities refuse to record their complaints.

3) Inadmissibility of recordings and photographs of intimate moments of an applicant as proof of homosexuality

The CNDA concluded that European legislation does not permit, in the course of examining an asylum application, OFPRA and the CNDA to accept and take into account elements of proof potentially negatively affecting an applicant’s or a third party’s human dignity. Therefore, such proof is not admissible before the court.

The CNDA concluded that the sincere, credible, concrete and detailed explanations of the Applicant, as well as other evidence provided, established, (i) that the Applicant was homosexual; (ii) that the Applicant had lived in Bangladesh; and, (iii) that, due to his membership of a particular social group and being unable to claim effective protection from the state if he were to return to his country of origin, the Applicant should be regarded as having a well-founded fear, within the meaning of the Geneva Convention, of being harmed by his relatives.

Outcome: 

The CNDA overturned the General Director of OFPRA’s decision of 21 November 2014 and granted refugee status to the Applicant.

Observations/Comments: 

Relevant information:

·       Recommendation CM/Rec(2010)5 of the Committee of Ministers to the Member States on measures to fight discrimination on grounds of sexual orientation or gender identity, dated 31 March 2010, in particular article X 43 on the fact that Member States should ensure that applicants are not sent to a country where their life or freedom would be threatened or where they would face the risk of torture, inhuman or degrading treatment or punishment, due to their sexual orientation or gender identity;

·       Conseil d’Etat (French Council of State), 23 August 2006, Case n° 272680, on the necessity for the Refugee Appeals Board (formerly the CNDA) to check whether it had sufficient facts regarding the situation of homosexuals in Ukraine to consider them to be a social group. Homosexuals in Ukraine were deemed to be a social group because, due to the common characteristics defining them from the perspective of Ukrainian society and authorities, such individuals were likely to face threats within the meaning of the Geneva Convention. These threats permitted homosexuals in Ukraine to be granted refugee status;

-       Jurisclasseur, Fasc. 233-70, updated on 1 October 2016, page 16, n°59 et seq., on persecutions due to membership of a particular social group. 

This case summary was written by Linklaters LLP.

Other sources cited: 

Article 377 of the Bangladeshi Criminal Code

Bangladeshi Criminal Procedure Code

Dhaka Metropolitan Police Ordinance

US State Department Bangladesh Human Rights Country Report, 25 June 2015

Global Freedom House, Country Report, Bangladesh, 31 March 2015

Global Rights Defence, Boys of Bangladesh “The Invisible Minority: The situation of the LGBT community in Bangladesh.”

UK Home Office Country of Origin Information Report, 2013

International Lesbian Gay Bisexual Trans and Intersex Association (ILGA), “State sponsored Homophobia. A World Survey of Laws: criminalisation protection and recognition, same-sex love”, May 2015