The applicant was an Algerian national and homosexual. He claimed refugee status on the basis of a well founded fear of persecution for the Refugee Convention reason of membership of a particular social group based on sexual orientation. He was refused by the Refugee Appeals Tribunal inter alia on the basis that he had not suffered any specific act of persecution or serious ill treatment between 1996 and 2006 when he came to Ireland and the Tribunal was of the view that a person must be seriously ill treated in their own country in order to come within the refugee definition.
The Tribunal referred to country of origin information that homosexuality was a taboo subject in Algeria and that because of the shame associated with it few individuals openly revealed their sexual orientation, and also that homosexuals may suffer harassment from the security forces and society in general. He found that while homosexuals in Algeria are discriminated against and harassed he was not satisfied that the extent of any harassment and discrimination that the applicant’s experienced amounted to persecution. The applicant’s claim was also rejected because he had not claimed asylum in France and Spain in which he had been for a two month period in 2003.
The Court held that the Tribunal appeared to have broadly accepted the applicant’s narrative, but that the Tribunal’s conclusion amounted to a finding that the applicant would come to no harm if he were to adopt a discreet lifestyle and not flaunt his homosexuality. It found that it was a fallacy to suggest that international protection will be available only where the applicant has actually suffered persecution in the past and the Geneva Convention protects those who can show they have a well founded fear of persecution. The test, therefore, was essentially forward looking. The question was whether there was a well founded fear that persecution may occur if the claimant was returned to his country of origin.
Secondly, homosexuals form part of a social group for the purpose of the Refugee Convention, and sexual orientation is an intrinsic and immutable feature of human identity. Hogan J. held that a homosexual cannot, therefore, be expected to sublimate or conceal their very identity in order to escape persecution by the state or societal forces condoned by the state, and he referred in this respect to the UK Supreme Court decision in HJ (Iran) v Home Secretary.
Noting the definition of persecution in Article 9(1)(a) of the ‘Qualification Directive’, the Court held that the fundamental question was whether the applicant was likely to have to endure a severe violation of his basic human rights if he is returned to Algeria in the sense contemplated by Article 9, in circumstances where it was unlikely that his homosexual orientation will be concealed.
The Court held that there were substantial grounds for stating that the Tribunal had erred in law by failing to ask the correct questions which were how the applicant was likely to be treated if he were returned to Algeria, and whether such treatment would amount to persecution i.e. would he be likely to suffer significant and severe violations of his human rights? Hogan J held that for an administrative tribunal to ask itself the wrong question was a jurisdictional error.
In relation to the Tribunal’s finding that the applicant could have claimed refugee status in either Spain or France, the Court held that this did not necessarily dispose of a case such as this. A failure to claim asylum at the first opportunity normally goes to the overall credibility of an applicant and may indicate a claim is not genuine. This case raised the difficult question as to whether a claimant who might otherwise have a valid entitlement to international protection may be disbarred simply by reason of his failure to claim asylum at an earlier opportunity in a different country. There was no suggestion here that the applicant was not generally credible and he distinguished E v Refugee Appeals Tribunal  IEHC 149 on that basis. He held that there were also substantial grounds on this basis to challenge the Tribunal’s decision.