Poland - Regional Administrative Court in Warsaw, 7 March 2013, V SA/Wa 910/12

Country of Decision:
Country of Applicant:
Date of Decision:
07-03-2013
Citation:
V SA/Wa 910/12
Court Name:
Regional Administrative Court in Warsaw
National / Other Legislative Provisions:
Poland - Prawo o postępowaniu przed sądami administracyjnymi (Polish Act on Proceedings before Administrative Courts)
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 19 § 1(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 97(1) (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 48
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 27
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 23
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Headnote: 

It is the duty of the Applicant to show that he has been persecuted or is at serious risk of persecution. He should describe that persecution and present it to the fullest extent possible, showing how it relates to him in particular. Lack of acceptance by one’s family, social ostracism, and the negative perception of people of a different sexual orientation do not constitute grounds for according refugee status. However, given that the foreigner’s illness (AIDS) is at a very advanced stage and that he is undergoing treatment for epilepsy, it is necessary to consider whether deportation to his country of origin would violate his right to life.

Facts: 

C., a citizen of Cameroon, submitted an application for refugee status, citing fear of persecution for reasons of sexual orientation. He said that he had been thrown out of his home by his father and beaten by his neighbours after he had been caught with another man in a hotel room. After the beating he was diagnosed with epilepsy. He had also been photographed by the police during a meeting with other homosexuals. The head of the Office for Foreigners determined that the Applicant did not meet the conditions laid down in the Geneva Convention relating to the Status of Refugees and that there were likewise no grounds for providing subsidiary protection or granting a permit for tolerated stay. After considering the appeal, the Polish Refugee Board upheld the decision of the Office for Foreigners. It found that the circumstances cited by C. did not constitute evidence of persecution for the reasons laid down in the Convention. The Board found the testimony of C. to be unreliable, vague, incoherent, not supported by any credible evidence, not consistent throughout the various stages of the proceedings, and contradictory with respect to the information gathered by the authority. Furthermore, the Board stated that, although homosexuality was not socially acceptable and was illegal in C.’s country of origin, people who practiced homosexual relationships in private or in intimate circumstances were in principle not prosecuted for it, despite the laws in force. Only people who declared and demonstrated their sexual orientation in public could suffer social rejection and discrimination and risk criminal prosecution. The foreigner lodged an appeal with the Regional Administrative Court for the decision to be overturned. During the hearing, C. presented a medical report confirming that he had been diagnosed with advanced HIV infection and epilepsy. The Halina Niec Legal Aid Center joined the proceedings.

Decision & Reasoning: 

The Court overturned that part of the decision which concerned the refusal to grant a permit for tolerated stay, and upheld that part of the decision which concerned the refusal to accord refugee status and provide subsidiary protection.

The Court stated that it is the duty of the Applicant to show that he has been persecuted or is at serious risk of persecution. He should describe that persecution and present it to the fullest extent possible, showing how it relates to him in particular. Those circumstances can then be comprehensively examined. The Court shared the view of the Polish Refugee Board that lack of acceptance by one’s family, social ostracism, and the negative perception of people of a different sexual orientation do not constitute grounds for according refugee status. In C.’s country of origin there exists no real threat of persecution for reasons of homosexual orientation. Although such people are stigmatised, no specific actions aimed against them have been reported to date. While homosexuality is illegal in Cameroon and punishable by imprisonment or a fine, criminal prosecutions are rare. Furthermore, people who practice homosexual relationships in private, without demonstrating them, are not prosecuted.

Irrespective of these observations, the Court found that it was necessary to reconsider C.’s deportation to his country of origin given that, aside from being a homosexual, he is also infected with the HIV virus, a fact which came to light during the hearing. The Court concluded that C. would have to undergo treatment in his country of origin and therefore would have to reveal both his illness and his sexual orientation. The treatment itself is made more difficult in Cameroon by the limited access to medications. Given that the illness is at a very advanced stage and that C. is also being treated for epilepsy, it is necessary to consider whether deportation would violate his right to life. The Court held that only after these circumstances had been considered in the context of granting a permit for tolerated stay could the case be properly decided, and for this reason it overturned Board’s decision in this regard.

Outcome: 

The Court overturned part of the decision appealed against.

Subsequent Proceedings : 

C.'s legal representative lodged a cassation appeal with the Supreme Administrative Court against the judgment of the Regional Administrative Court; the proceedings are ongoing.

Observations/Comments: 

According to the judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department and according to the views of doctrine (as expressed, for instance, in the report entitled “FleeingHomophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe” by Sabine Jansen and Thomas Spijkerboer) in LGBTI cases the “discretion requirement” should not be used. As the described case shows, however, Poland to some extent still uses this requirement as an argument for refusing protection.