SA (Algeria) v Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2012] IEHC 78
Nature of Proceedings:Judicial Review
Judgment Date/s:24 Jan 2012
Category:Refugee Law
Keywords:Asylum (Application for), Asylum application (Examination of an), Geneva Convention & Protocol, Persecution, Persecution (Acts of), Protection (Application for International), Refugee, Refugee Law, Refugee Status
Country of Origin:Algeria
URL:https://www.courts.ie/acc/alfresco/93608601-8979-4e5c-a362-1102a6476ade/2012_IEHC_78_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts 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 … Read More

Principles:

It is an error to suggest that international protection will be available only where the applicant has actually suffered persecution in the past. The Geneva Convention protects those who can show they have a well founded fear of persecution and the test is essentially forward looking. The question is whether there is a well founded fear that persecution may occur if the claimant is returned to his country of origin.

The fundamental question is whether the applicant is likely to have to endure a severe violation of his basic human rights if he is returned to his country of origin within the definition of persecution in Article 9(1)(a) of the Qualification Directive.

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. A homosexual cannot be expected to sublimate or conceal their very identity in order to escape persecution by the state or societal forces condoned by the state.

While 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, a claimant who might otherwise have a valid entitlement to international protection may be not be disbarred simply by reason of his failure to claim asylum at an earlier opportunity in a different country, where he is otherwise generally credible.

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