Thursday, 26 December 2013

Independent: Refugee Commissioner speaks out on sexual orientation asylum
Sunday, 01 December 2013, 09:30

Following last Sunday’s article that highlighted the Refugee Appeals Board’s granting of asylum to a Nigerian in November on the grounds of his sexual orientation, after his first application to the Office of the Refugee Commissioner had been denied in April, Refugee Commissioner Mario Guido Friggieri has clarified that his office has granted asylum on such grounds in the past.

Mr Friggieri explains, “Asylum seekers who substantiate their fear of past or future persecution in their country of origin due to their sexual orientation, are recognised as refugees under the 1951 Refugee Geneva Convention, by this same Office.

“The Office notes that it has already in the past granted protection to persons who claim to be homosexuals and who have substantiated their claim that they fear persecution in their respective country of origin.”

Last week’s article dealt with the case of an 18-year-old Nigerian migrant who had been granted asylum in Malta due to persecution in his home country because of his homosexuality, seeing that consensual homosexual conduct is punishable by up to 14-years in prison under Nigeria’s federal criminal code. The Refugee Appeals Board also found that in Nigerian states applying Sharia law, consensual homosexual conduct among men is punishable by death by stoning or flogging.

This was the first time such an asylum application had been granted since the recent judgement delivered by the European Court of Justice which ruled that gay asylum-seekers from an African country where people are jailed for being homosexual qualify for asylum in Europe – a ruling that had been considered by the Refugee Appeals Board in its determinations.

But, according to Mr Friggieri, this was far from the first time that asylum has been granted on the grounds of a claimant’s fear of persecution in his or her country of origin due to their sexual orientation.

The Office of the Refugee Commissioner, however, disagrees with the details of such cases being divulged.

Mr Friggieri explains, “The Office of the Refugee Commissioner is of the opinion that it is preferable that no details about such cases are divulged since confidentiality is extremely important and only the client himself should have the right to make public details about his asylum application.”

The Refugee Appeals Board, in overturning the decision of the Office of the Refugee Commissioner, had also flagged certain questions asked by the Refugee Commissioner’s Office regarding the sexual life of the appellant as “not appropriate, and shed no light whatsoever on the particular matter which needed to be determined”.

The Refugee Appeals Board had stated: “The question at hand was, in the view of the Board, very simple: whether the appellant is credible in claiming to be homosexual or not,” which can be established through clear facts, such as whether he had had a male partner for a continuous period, and whether he involved himself in same-sex sexual encounters.

The Board said that further questioning about the specifics of these sexual encounters “is purely irrelevant, if not lacking in respect for the dignity of the appellant”.

But, according to Mr Friggieri, such questioning is perfectly in line with the difficult task of assessing an applicant’s asylum claim.

He adds, “Regarding the assessment of credibility, which as correctly described in the article is ‘notoriously difficult’, the Office of the Refugee Commissioner notes that this plays a central role in asylum determination and is a crucial step in deciding how to weigh an asylum seeker’s statements and other evidence, when making an asylum decision.”

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