Protection claims and evidence of the risk of persecution for homosexuality

M.I. v Sweden, UN Doc CCPR/C/108/D/2149/2012 (14 August 2013)

Summary

The United Nations Human Rights Committee found that the deportation of M.I., a Bangladesh national, by Sweden to Bangladesh would constitute a violation of article 7 of the International Covenant on Civil and Political Rights because of the risk to M.I. of torture and other cruel, inhumane or degrading treatment or punishment if she were returned to Bangladesh.

Facts

M.I. used to live in Dhaka, Bangladesh with her parents and siblings. When M.I.'s parents learned of her sexual orientation, they arranged a wedding against her will to a Bengali man who lived in Sweden, which M.I. claimed was to force her to change her sexual preference for women. M.I. arrived in Sweden with a temporary residence permit shortly after the wedding, but her husband forced her to go back to Bangladesh when he discovered her sexual orientation.

In Bangladesh, M.I. was detained by police when her sexual orientation was discovered. During this detainment, M.I. was raped and beaten. At the same time, M.I.'s partner was kidnapped by an Islamic organisation called Shator Shivir and M.I. also received verbal threats from this organisation and from the police after her release.

M.I. returned to Sweden using her temporary resident permit and applied for asylum with the Swedish authorities a number of times claiming that if she was returned to Bangladesh she would be at risk of torture and inhumane treatment because of her sexual orientation. M.I. supplied medical reports indicating that she suffered from severe depression due to her fear of returning to Bangladesh and her family's rejection of her sexual orientation, and that despite medication, she was at risk of suicide. She also supplied evidence in relation to her partner's disappearance and the attitude towards homosexuality in Bangladesh.

M.I.'s applications were rejected because she did not have any written proof to support her claims and her allegations were inconsistent and vague, leading to them being assessed as lacking in credibility. Further, the State party’s authorities did not believe that she would be at risk of persecution in Bangladesh because of her sexual orientation for the following reasons:

• the State party's authorities believed that the alleged threats that M.I. received, and the detention and rape that she experienced were acts of misconduct by individuals who would have been sanctioned had M.I. reported these incidents to the local authorities;
• the State party's authorities noted that although homosexuality is prohibited in Bangladesh, it was unclear whether, and to what extent, this law was enforced; and
• M.I. was able to leave Bangladesh using her own passport, which indicated that she was not being pursued by the Bangladeshi authorities.

M.I. complained to the Committee on the basis that the State party's authorities had not adequately assessed the risk of persecution, torture and other cruel, inhumane or degrading treatment or punishment to which she would be subject if she were returned to Bangladesh, and which would constitute a violation of article 7 of the International Covenant on Civil and Political Rights.

Decision

Consideration of admissibility

The Committee decided that the case was admissible because it was not being examined under any other procedure of investigation or settlement, all available domestic remedies were exhausted and M.I. had provided sufficient details and documentary evidence regarding her claim.

Consideration of the merits

The Committee observed that M.I.'s sexual orientation and allegations of rape by the Bangladeshi police while in detention were not challenged by the State party. Further, her sexual orientation was in the public domain and, despite undergoing medical treatment, M.I. continued to be at risk of suicide due to her severe depression.

Homosexuality is forbidden in Bangladesh. The Committee considered that, whether or not this law is enforced, the existence of such a law in itself fosters the stigmatisation of sexual minorities and makes it difficult to investigate and sanction anyone persecuting a person on the basis of their sexual orientation.

The Committee considered that the State party had put too much emphasis on the inconsistencies and ambiguities in M.I.'s account of the facts, but that these inconsistencies and ambiguities did not undermine the reality of M.I.'s feared risk. The Committee decided that the State party's authorities had failed to give proper consideration to M.I.'s allegations when assessing whether she faced a risk upon return to Bangladesh, particularly in light of M.I.'s experiences when detained by Bangladeshi police, and the reality faced by people belonging to a sexual minority, as reflected in the reports provided by the parties.

The Committee found that if M.I. were to be deported back to Bangladesh, this would violate her rights under article 7 of the International Covenant on Civil and Political Rights. As such, the State party is under an obligation to fully reconsider M.I.'s claim taking into account the Committee's views.

Commentary

Section 36(2A) of the Migration Act 1958 (Cth) allows the granting of a protection visa on the basis that a person would be subjected to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment. This case highlights that in circumstances where a person is seeking protection (or, in the case of the Migration Act, seeking asylum) on the basis that they would be subject to torture, or cruel, inhumane or degrading treatment, the decision-maker should be careful to avoid giving too much weight to the person's lack of written or concrete evidence of their past experiences, particularly if their account is unchallenged.

Further, the decision-maker must be mindful that ambiguities or discrepancies in the person's account of the facts may not be sufficient justification to deny rights, especially where the reality of the person's feared risk is otherwise demonstrated.

The decision-maker should also consider that when there is a law prohibiting conduct, like homosexuality, then even if this law is not enforced rigidly, it may foster stigmatisation of a certain minority and create an environment in which people who persecute this minority are not sanctioned. This, in itself, can contribute to the real fear of persecution that a member of this minority may experience.

The decision can be found online at: http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/SWE/CCPR_C_108_D_2149_2012_20722_E.pdf

Levona Lavi is a Law Graduate at Allens.