Poland - Polish Council for Refugees, 12 March 2012, RdU-495-2/S/11

Country of Decision:
Country of Applicant:
Date of Decision:
12-03-2012
Citation:
RdU-495-2/S/11
Court Name:
Polish Council for Refugees
National / Other Legislative Provisions:
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 13 § 1
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 13 § 4
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 14 § 2
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 15
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Headnote: 

The authorities of first and second instance—the Head of the Office for Foreigners and the Polish Council for Refugees—refused to grant refugee status or other forms of protection to an applicant from Uganda who had applied for refugee status because of his sexual orientation. They made the same decisions but on fundamentally different grounds and factual findings. The  first instance authority found that the applicant was homosexual but that the information about the country of origin indicated that his fear was not well-founded. The  second instance authority found that homosexuals are at risk of persecution in Uganda but that the applicant was not homosexual, and the opinion of a doctor who is a sexologist did not prove sexual orientation. Instead, this needed to be proved based on the testimony of the applicant, which is then verified in the context of his general credibility during the proceedings.

Facts: 

In 2009, a Ugandan applied for refugee status in the Republic of Poland on the grounds of fear of persecution in his country of origin, due to his homosexuality.

The  first instance authority ordered the applicant to present a report issued by a sexologist to confirm his homosexuality. Documents were also presented during the proceedings concerning his arrest for engaging in homosexual relations in a public place.

The  first instance authority found that the foreignor was indeed homosexual but did not find the documents concerning the arrest credible. The authority also acknowledged the fear expressed by the foreignor of returning to his country of origin. The authority also found, however, that this fear was not justified by objective circumstances, i.e. the situation prevailing in the foreignor's country of origin. In this regard, the authority said that homosexual relations are indeed criminalised but that these regulations are not applied in practice. Persecution within society did occur, but this was also rare.

The foreignor appealed against this decision. The Polish Council for Refugees, as the authority of second instance, upheld the decision by the  first instance authority.

Decision & Reasoning: 

The position of homosexuals in Uganda is so bad that merely being homosexual means persecution is very likely, thus justifying the fear of the applicant. Both the fact that homosexual relations are criminalised and the fact that this law is applied in practice, albeit only to a limited extent, are relevant to this finding. The very existence and application of laws that criminalise homosexual relations may constitute sufficient grounds for refugee status to be granted, as this situation meets the test for legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner.

A report by a doctor does not prove the sexual orientation of the applicant. A one-line report indicates that it was not based on any extensive examination performed in order to establish the applicant's sexual orientation. As many different factors govern human sexual orientation, there are no objective medical procedures enabling the orientation of a given person to be determined beyond doubt. The opinion of doctors or psychiatrists cannot be taken as evidence in this regard. This question should be resolved based on the testimony of the applicant, which should be assessed in the context of his general credibility during the course of the proceedings. If he is generally found unreliable in the proceedings, this will have an effect on the assessment of his stated sexual orientation as the basis for applying for protection.

Outcome: 

The refusal by the  first instance authority was upheld.

Subsequent Proceedings : 

The foreignor appealed against the decision by the  second instance authority to the Regional Administrative Court in Warsaw. In its judgment of 20 November 2012, case reference V SA 1048/12, the court overturned the decision and found that the Polish Council for Refugees had not been entitled to question evidence in the form of an opinion by a specialist in sexology. Currently, the case is pending before the  second instance authority.

Observations/Comments: 

This case is important from the point of view of standards in relation to establishing the key fact in proceedings of this type, namely the sexual orientation of the applicant. Even though the Polish Council for Refugees, in its decision, criticised the opinion of the doctor as evidence of the individual's particular sexual orientation, the Regional Administrative Court in Warsaw did not take a view on whether the presentation of this type of evidence as such or the administrative authority's order that such evidence be presented were legitimate.

Other sources cited: 

Report entitled Fleeing Homophobia, University of Amsterdam, 2011