Tuesday, 21 April 2009

'Being Discreet' - HJ Iran and HT Cameroon

The Court of Appeal has recently considered the circumstances in which homosexuals who had been compelled to be discreet in their country of origin ought to be recognised as refugees. Although the case concerned two gay men, one from Cameroon and the other from Iran, the Court’s decision will be applied to the claims of lesbians, unless it is overturned.

It was accepted that both men formed part of a particular social group for the purposes of the Refugee Convention as “practising homosexuals”. Both men had suppressed the expression of their sexual identity in their country of origin before coming to the UK in order to avoid adverse
consequences there.

The judgment was given by Lord Justice Pill with the two other members of the Court agreeing with his decision. It focuses upon whether the decisions of the Asylum and Immigration Tribunal in both cases were compatible with an earlier Court of Appeal decision in the case of J.

Confusingly the appellant in J was also the appellant, known as HJ, in this case. In its earlier judgment, the Court of Appeal had been persuaded by a decision of the High Court of Australia.

The Australian decision had taken a broad view of gay sexual identity. The judgment did not confuse or conflate sexual behaviour with sexual identity, but saw it as one of the constituent parts of such an identity.

With regard to discretion, it stated that:

“Persecution covers many forms of harm…Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action. … The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors”
In the Australian High Court’s view it was a “fallacy” to assume that “the conduct of the applicant is uninfluenced by the conduct of the persecutor”.

In J the Court of Appeal concluded that the Asylum and Immigration Tribunal should have asked itself why an appellant had “opted for ‘discretion’” before leaving the country of origin, and whether such behaviour was something that “the appellant can reasonably be expected to tolerate”, not just with regard to sexual behaviour, but “in relation to ‘matters following from, and relevant to, sexual identity’ in the wider sense recognised by the High Court of Australia”.

It also noted that it was relevant to consider that the appellant may have to “abandon part of his sexual identity.... in the circumstances where failure to do that exposes him to...extreme danger”.

Both appellants’ argued that the Asylum and Immigration Tribunal’s decision in their cases were incompatible with the Court of Appeal’s decision in J. However the Court of Appeal dismissed both appeals on the basis that the Tribunal had understood and applied the test correctly. In HJ’s case, “[t]heir conclusion that HJ could reasonably be expected to tolerate conditions in Iran was firmly based on the evidence in the case considered in the context of the in-country evidence”.

With regard to HT, no evidence was before the Tribunal to show that he could not reasonably be expected to tolerate a life of discretion. In coming to this conclusion the Court of Appeal noted that:
“Both in Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about homosexual practices. In considering what is tolerable in a particular society, the [Tribunal] is in my view entitled to have regard to the beliefs held there. A judgment as to what is reasonably tolerable is made in the context of the particular society.”
It continued later to hold that:
“...a degree of discretion can be required in all sexual relationships, heterosexual as well as homosexual...Having said what I have, I recognise of course, that there are limits, if a contracting state is to fulfil its obligation to uphold fundamental human rights, to what can be tolerated, when considering an asylum application, by way of restrictions in the receiving state. Whether a requirement to respect social standards has the effect of violating a fundamental human right is a matter of judgment for the Tribunal.”
WAN understands that the applicants representatives will be seeking to appeal the decision of the Court of Appeal to the House of Lords.



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