Individualised consideration, not stereotypes, needed when assessing sexuality-based refugee claims

A, B, C v Staatssecretaris van Veiligheid en Justice (European Court of Justice, C‑148/13 C‑149/13, C‑150/13, 2 December 2014)

The European Court of Justice examined Dutch authorities’ assessment of the credibility of men seeking asylum on the basis of feared persecution because of their declared homosexuality. The Court found that assessment of the credibility of a person’s claim to be homosexual should be sensitive to individual circumstances, not based on stereotypes, and consistent with fundamental human rights.

Facts

A, B and C were all male asylum seekers challenging the denial of their claims for refugee protection in the Netherlands. All three claimed they were homosexual and feared persecution in their home countries because of that fact.

The Dutch State Secretary for Security and Justice (the Staatssecretaris) and then the District Court rejected the Applicants’ claims on the basis that the Applicants’ statements and evidence backing up their declarations about their homosexuality were vague, implausible and lacked credibility.

The Dutch authorities’ assessments of credibility were influenced by the following facts:

• A and C had sought asylum previously and had not mentioned their sexual orientation in those applications;
• B had not been able to answer questions about his internal awareness of his sexual orientation; and
• C could not answer questions about how he became aware of his homosexuality and could not name any organisations in the Netherlands that protect homosexuals’ rights.

Also important was the fact that:

• A had said he was willing to take part in “tests” or perform homosexual acts to prove his homosexuality; and
• C had provided a videotape to authorities of him performing homosexual acts.

The Applicants each appealed to the Council of State. The Council stayed their cases and applied to the Court for a preliminary ruling on the following question:

What limits do Article 4 of [European Council Directive 2004/83/EC] and [the Charter of Fundamental Rights of the European Union], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?

Legal background

Article 4 of EU Directive 2004/83 makes the applicant for asylum responsible for submitting “all elements needed to substantiate the application for international protection.” The authorities must then assess those relevant elements from a legal perspective and in light of all the relevant facts and individual circumstances of the applicant.

The elements are usually satisfied through appropriate documentation, but an applicant’s statements can be accepted without supporting documentation if they are found to be coherent and plausible and if the applicant is generally credible.

Article 3 of the Charter enshrines a right to integrity of the person, and Article 7 enshrines a right to privacy and to a family. The Court also considered Article 1, the inviolable right to human dignity, to be important.

Decision

The Court stated that the Convention relating to the Status of Refugees “constitutes the cornerstone” of international refugee protection. Therefore, the Directive and Dutch national law relating to refugees must be interpreted consistently with the Refugee Convention.

The Court found that the authorities do not have to simply accept an applicant’s declaration of their sexuality and can assess the credibility of these declarations where there is no supporting documentation provided by the applicant. However, the methods the authorities use for this assessment must be in accordance with the Directive and the Charter.

The Court first dealt with the questions that had been asked of B and C. The Court found that the questions reflected stereotyped views of what it meant to be homosexual and the failure to answer those questions was not evidence that the applicant was not credible. Asking those questions to assess credibility infringed the requirement in the Directive to take account of the “individual situation and personal circumstances” of each applicant.

The Court also found that it would be impermissible under Articles 1 and 7 of the Charter to accept or require evidence in the nature of “tests” of homosexuality, demonstrations of homosexual acts, detailed questions concerning the sexual practices of the applicant, or videos of homosexual acts being performed.

Finally, the Court considered it inappropriate to rely on the failure of A and C to disclose their homosexuality in their original protection applications as evidence of their credibility. The Court acknowledged that a person’s sexuality is a particularly sensitive issue. The requirement to take into account personal circumstances may require authorities to take into account an applicant’s reticence about disclosing their homosexuality, especially if that person is from a place where homosexuality is not culturally accepted and is repressed.

Commentary

This decision reinforces the importance of an individualised assessment of a person’s claim for refugee protection. Resort to stereotypes or assessments that fail to account for personal circumstances are not appropriate when assessing refugee status.

In Australia, the passage of the Migration and Maritime Powers Amendment Bill at the end of last year has decreased transparency, limited rights of review and ‘fast-tracked’ the assessment of refugee claims – introducing administrative shortcuts into a process that makes profoundly important decisions. As with reliance on outdated and arbitrary stereotypes, Australia’s abbreviated assessment process increases the risk of error in a context in which the margin for error is nil.

Further, the Bill has excised from Australian law reference to the Refugee Convention; a convention that the Court made clear remains the “cornerstone” of refugee protection internationally.

The importance and complexity of assessing the claims of asylum seekers who face persecution because of their sexuality is an issue of particular significance for Australia in the context of offshore processing in Nauru and PNG, countries which criminalise homosexuality.

The full text of the decision can be found here.

Alex Maschmedt is a Solicitor at King & Wood Mallesons.