Italy - Tribunal of Genova, 13 May 2016, no. 15023/15

Country of Decision:
Country of Applicant:
Date of Decision:
13-05-2016
Court Name:
Tribunal of Genova
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Headnote: 

There is a well-founded fear of persecution based on membership of a particular social group in the case of an applicant who, even though he is not gay, he is perceived as such by his community, his family and the authorities in his country of origin. 

Facts: 

The case concerns a Ghanaian man who had his application rejected by the Territorial Commission (Commissione Territoriale). The applicant claimed that he was forced to leave Ghana because he was accused of being gay, although that did not correspond to his actual sexual orientation. In fact, he had been abused by another man and had been caught with him by a neighbour, who had called the police. Moreover, after this event, his family rejected him and therefore he decided to flee and seek asylum. The Territorial Commission considered the asylum seeker’s account to be incoherent and too generic. In particular, according to the Commission, the applicant provided an excessively synthetic description of his story, without displaying a sufficient level of emotional engagement. After the refusal, the applicant lodged an appeal with the Tribunal of Genova.

Decision & Reasoning: 

At the outset, the Tribunal recalled the legislative framework applicable to the present case, in particular that asylum claims based on sexual orientation are recognised under the ground of ‘membership of a particular social group’. Moreover, the Tribunal also quoted the Court of Justice of the European Union’s decision in X, Y and Z, according to which LGBTI individuals constitute a particular social group for the purposes of the EU Qualification Directive.

Then, the appellate Tribunal passed on to examine the credibility of the applicant and whether he could be recognised as a refugee. With regard to the first aspect, the Tribunal, contrary to the first-instance decision, noted that the asylum seeker’s story was sufficiently detailed and logic. To this extent, it recalled Article 4(5) of the EU Qualification Directive, particularly that, when the applicant’s statement is not supported by documentary or other evidence, it should not need a confirmation insofar as: ‘(a) the applicant has made a genuine effort to substantiate his application; (b) all relevant elements at the applicant’s disposal have been submitted, and a satisfactory explanation has been given regarding any lack of other relevant elements; (c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case; (d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and (e) the general credibility of the applicant has been established’.

In the present case, the Tribunal found that applicant had made all reasonable efforts to provide all the elements to support his claim. In reaching this conclusion, the Tribunal took into due consideration the fact that the applicant had been a victim of sexual violence and, as such, was subject to experiencing post-traumatic stress disorder which can cause memory loss and a lack of emotional involvement. Therefore, the Tribunal stated that the applicant cannot reasonably be required to display an additional emotional burden when talking about his story, as this would lead to the violation of the principles outlined before.

As for the constitutive elements of the refugee status, the Tribunal looked at the well-founded fear of persecution that gay men suffer in Ghana. For this purpose it mentioned that the Penal Code of the country punishes same-sex conduct with imprisonment. Moreover, it also referred to several news and reports (such as Amnesty International) describing the harsh conditions to which LGBTI individuals are exposed to in Ghana. On this basis, the Tribunal concluded that the appellant had a well-founded fear of persecution for belonging to a particular social group because, albeit he was not gay, he had been – and still was –  perceived as such by the police and his family. Thus, if returned to Ghana, the applicant’s life would have been at risk for his imputed sexual orientation.

Outcome: 

The Tribunal recognised the status of refugee.

Observations/Comments: 

This decision is particularly important because it concerns the imputed sexual orientation as a reason for the well-founded fear of persecution. In addition, it provides important principles to be taken into consideration when dealing with issues of credibility of LGBTI applicants. In particular, this decision affirms that it is not reasonable to require applicants to display an additional emotional involvement compared to other asylum seekers. Moreover, this judgement reveals the importance of looking at the applicant’s conditions of vulnerability in the assessment of the asylum claim. Finally, it also demonstrates the Tribunal’s awareness of the conditions of LGBTI persons in the country concerned. 

 

This case summary was written by Denise Venturi, PhD Candidate in International Law at Scuola Superiore Sant'Anna (Italy) and KU Leuven (Belgium).

Case Law Cited: