A (S) [Algeria] v Min for Justice & Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 24 January 2012
• Neutral Citation: [2012] IEHC 78
• Court: High Court
• Date: 24 January 2012

[2012] IEHC 78

THE HIGH COURT

[No. 1194 J.R./2008]

A (S) [Algeria] v Min for Justice & Refugee Appeals Tribunal

BETWEEN/

SA (ALGERIA)

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S11

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 1A(2)

A (M) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP RYAN 12.11.2010 2010 IEHC 519

E (O) v REFUGEE APPEALS TRIBUNAL & ORS UNREP SMYTH 30.3.2011 2011 IEHC 149

J (H) (IRAN) v SECRETARY OF STATE FOR THE HOME DEPT; T (H) (CAMEROON) v SECRETARY OF STATE FOR THE HOME DEPT 2011 1 AC 596 2010 3 WLR 386 2011 2 AER 591 2010 UKSC 31

EEC DIR 2004/83 ART 9(1)(A)

EEC DIR 2004/83 ART 9

KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

IMMIGRATION LAW

Asylum

Judicial review - Refugee Appeals Tribunal - Refusal of refugee status - Homosexual - Whether tribunal correct in refusing refugee status on basis that no specific act of harassment or discrimination identified - Whether test prospective - Whether tribunal correct in finding applicant would come to no harm if he adopted a discreet lifestyle and not flaunt his homosexuality - Whether sexual orientation an intrinsic and immutable feature of human identity - Whether homosexuals could be expected to sublimate or conceal identity to escape wrath of state of societal forces - Whether applicant's livelihood as musician consistent with living discreetly - Whether substantial grounds - Whether failure to apply for asylum in France and Spain a ground for refusing refugee status - Whether failure to apply for asylum relevant to credibility - Whether credibility in issue - MA v Minister for Justice [2010] IEHC 519 (Unrep, Ryan J, 12/11/2010) followed - HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, [2011] 1 AC 596 approved - OE v Refugee Appeals Tribunal [2011] IEHC 149 (Unrep, Smyth J, 30/3/2011) distinguished - United Nations Convention Relating to the Status of Refugee 1951, art 1A - Directive 2004/83/EC, art 9 - Decision quashed (2008/1194JR - Hogan J - 24/1/2012) [2012] IEHC 78

A(S) v Minister for Justice, Equality and Law Reform

1 1. The applicant, Mr. A, is an Algerian national who is also homosexual. He was a singer and played the drums in an otherwise female band which typically sang at weddings and other social gatherings. Mr. A. now seeks leave to challenge a decision of the Refugee Appeals Tribunal dated 26 ^th September, 2008, which rejected this application for refugee status by reason of his sexual orientation, largely due to the de facto circumstances of homosexuals in Algeria, but also by reference to the fact that he failed to apply for asylum during a two month sojourn in Spain and France in the latter part of 2003.

2 2. The applicant's account may be summarised as follows: in the mid-1990s a state of nascent civil war existed in Alergia. Islamic fundamentalist groups engaged in many terrorist activities, often directed at those who engaged in activities that these groups considered to be "corrupt" and "un-Islamic" practices, such as the playing of music. Mr. A. contends that he was singing (while dressed in female attire) at one such wedding in 1995 when the hotel was attacked. He surmises that the terrorist group heard the singing and that this prompted the attack.

3 3. Mr. A. was then arrested following the arrival of the police. He contends that the police originally suspected that he might have been involved in a terrorist group and that he was detained for twelve months. Following investigations by the gendarme, he was released. At his s. 11 interview, Mr. A. maintained that he was arrested by reason of his homosexual orientation "because he was signing with women at parties." (I should interpose here by observing that country of origin information - in this instance, a 2004 report issued by the research directorate of the Immigration and Refugee Board, Ottawa on the treatment of homosexuals by Algeria - suggests that "only extremely effeminate men are recognised as homosexuals in Algeria.") At a later point Mr. A. suggested that he had been charged because of suspicion that he was involved with the terrorists.

4 4. The interview continued thus:

"Q:	So then they thought that you were not gay, if they released you after one year?
A:	If they knew that I was gay, they would abuse me in jail.
Q:	So what was the investigation about?
A:	I told them I am only a singer and that I don't have any links with terrorists. They did their investigation and they found I don't have any terrorist links.

Q:	Earlier when I asked [what] the charges were, you said being gay so why were they investigating about terrorists?
A:	They thought I was connected with the terrorists, but I am not. I am only a singer.
Q:	So they did not arrest you for links with terrorism, they arrested you for being gay?
A:	There was confusion in the country then. God knows what actually happened there."

5 5. Following his release, Mr. A. says that he went to Tunisia for two months in 1999. During that sojourn it appears that he was imprisoned for two weeks for some unspecified crime. It appears that in the late Autumn 2003 he travelled to both France and Spain on a Schengen visa. Although he says that he indicated to the French authorities that he wanted to apply for asylum, he was nonetheless sent back to Spain. He was then returned to France in December, 2003 where he was deported to Algeria.

6 6. The applicant ultimately arranged with a trafficker to travel by boat to Italy in March 2006. He spent a week in Italy before arriving by air in Ireland on 18 ^th March, 2006.

7 7. The Tribunal member ultimately found against the applicant for the following reasons:-

"He continued to live in Algeria after being released from prison which was presumably sometime in 1996. He then went to Tunisia in 1999 but returned again to Algeria. While he says that society discriminates against homosexuals in Algeria, I cannot find any specific act of persecution that allegedly occurred between 1996 and the time that he ultimately came to this country. I find it difficult to conclude that the applicant suffered serious ill treatment in 1996 from the time whilst in Algeria before he left that country. In order to be classified as persecution, I am of the view that somebody must be seriously ill-treated in their own country in order to qualify within that definition… This applicant seems to have travelled to a number of European countries since 2003 and the time when he arrived in this country. For example, he travelled to France and Spain and he once told the French authorities that he wanted to claim asylum, it appears that he never made any formal application for asylum and other grounds for Spain. It is claimed that he was unaware of the asylum procedure for claiming in those countries is not a satisfactory explanation as to why he did not attempt to claim asylum properly in either of those countries."

Whilst homosexuals in Algeria are discriminated and harassed… I am not satisfied that the extent of any harassment and discrimination as far as this applicant is concerned...