![[Sökformulär]](http://trip.abo.fi/icon/sok.gif){kind=icon}
![[Info om databasen]](http://trip.abo.fi/icon/info2.gif){kind=icon}
![[Söktips]](http://trip.abo.fi/icon/soktips.gif){kind=icon}
| [1 / 7] |
Date when decision was rendered: 27.8.2004 Judicial body: Vaasa Administrative Court = Vasa förvaltningsdomstol = Vaasan hallinto-oikeus Reference: Report No. 04/0253/3; 00411/04/5990 Reference to source Registry of Vaasa Administrative Court Vasa förvaltningsdomstols registratorskontor Vaasan hallinto-oikeuden kirjaamo Date of publication: Subject
equality,
non-discrimination,
sexual orientation,
homosexuality,
church,
Relevant legal provisions section 6 of the Non-Discrimination Act; section 6 of the Constitution Act; section 1 of the Act on Registration of Partnership; Chapter 24, section 4 of the Church Act; Chapter 6, section 24-1 of the Church Order = lag om lika behandling 6 §; grundlagen 6 §; lag om registrerat partnerskap 1 §; kyrkolagen 24 kapitel 4 §; kyrkoordning 6 kapitel 24 § 1 mom. = yhdenvertaisuuslaki 6 §; perustuslaki 6 §; laki rekisteröidystä parisuhteesta 1 §; kirkkolaki 24 luku 4 §; kirkkojärjestys 6 luku 24 § 1 mom. Abstract A had applied for the position as an assistant vicar.The Cathedral Chapter decided that A was not qualified for the position because of the fact that she was living in a same-sex relationship and possibly intended to register that partnership.A appealed against the decision to the administrative court, referring among other things to the prohibition of discrimination in the Constitution Act and in international human rights treaties.The administrative court noted that the registration of a same-sex partnership is accepted and prescribed in law.It then referred to the Constitution Act and the Non-Discrimination Act and to the prohibition of discrimination, without an acceptable reason, on the ground of personal characteristics.The court regarded a same-sex partnership as a reason pertaining to a person or to personal characteristics.In the court's opinion, exceptions to the prohibition of discrimination are not possible in this case unless the reasons for disqualification, though based on the teachings of the church, are also based on the law.As there are no such exceptions included in the Church Act, A could not be disqualified on the grounds presented in the decision of the Cathedral Chapter.The matter was returned to the Cathedral Chapter for a new consideration. 20.1.2005 / 20.1.2005 / ASADINMA
|
|
|
|
| [2 / 7] |
Date when decision was rendered: 13.1.2012 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 23; 1750/1/11 Reference to source KHO 2012:1. Yearbook of the Supreme Administrative Court 2012 January-June Högsta förvaltningsdomstolens årsbok 2012 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2012 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2012 Pages: 9-25 Subject
aliens,
asylum,
sexual orientation,
homosexuality,
refusal of entry,
Relevant legal provisions sections 87, 87b and 88 of the Aliens Act; section 9-4 of the Constitution Act = utlänningslag 87 §, 87b § och 88 §; grundlagen 9 § 4 mom. = ulkomaalaislaki 87 §, 87b § ja 88 §; perustuslaki 9 § 4 mom. ECHR-3; Articles 2, 18 and 19 of the Charter of Fundamental Rights of the European Union; Convention relating to the Status of Refugees Abstract X was originally from Iran.He was gay and had voluntarily chosen to conceal his sexual orientation from his parents and relatives.After X had been compelled to an arranged marriage, his sexual identity had been revealed.X claimed that his wife's family had accused him of betrayal and had sued him and that the court had sentenced him to death for homosexual conduct.X had fled Iran and had spent several years in different countries before arriving in Finland where he applied for asylum and a residence permit.The Immigration Service rejected his application.His appeal to the administrative court was also not successful.Both instances held, among other things, that gender-related aspects do not alone create a presumption of persecution and that X's account of the trial and the death sentence had not been sufficiently substantiated.Considering also that several years had passed since the events, that X had previously lived in Iran as a homosexual and that he could live elsewhere in Iran instead of his former home town, X's fear of being subjected to persecution if returned to Iran was not objectively justified. The Supreme Administative Court noted that sexual orientation falls within the scope of protection of private life.The purpose of international protection is to provide protection against justified fear of persecution when the national state is unwilling or unable to provide such protection.However, the purpose is not to guarantee a person belonging to a sexual minority the possibility to live in his or her home country as openly as in the asylum country.If the applicant voluntarily conceals his or her sexual orientation in his or her home country due to social, cultural or religious reasons and not because of fear of persecution, the requirements for granting asylum are not met.Regarding asylum requirements the Supreme Administrative Court found that it had been reliably shown that X was a homosexual and thus belonged to a minority group and a particular social group.As far as fear of persecution was concerned the Supreme Administrative Court held that it was sufficient if the applicant can reliably show that he or she is suspected of belonging to a sexual minority group in his or her home country.In X's case it was likely that the Iranian authorities had been aware of his sexual orientation at least from the point in time when, as had been substantiated, legal proceedings had been initiated against X's mother concerning X's absconding and the marriage and identity documents of X and his wife.That X should nevertheless continue to voluntarily conceal his sexual orientation and to suppress his sexual identity was, in the view of the Supreme Administrative Court, not in line with the purpose of the Refugee Convention.The court continued that although X had not been able to present reliable documentary evidence on his alleged death sentence, the Immigration Service and the administrative court should have assessed, taking into account up-to-date country reports and all the evidence presented in the case, whether X had a well-founded fear of being persecuted in Iran due to his sexual orientation or whether he would face a real risk of being subjected to serious harm if returned to Iran.The Supreme Administrative Court quashed the decisions of the Immigration Service and the administrative court and referred the case back to the Immigration Service for a new consideration. 4.7.2016 / 2.3.2017 / RHANSKI
|
|
|
|
| [3 / 7] |
Date when decision was rendered: 11.11.2016 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 909/4/16; 4763 Reference to source KHO 2016:174. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitietiministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
asylum,
sexual orientation,
homosexuality,
deportation,
Relevant legal provisions sections 87, 88, 88a and 95 of the Aliens Act; section 9-4 of the Constitution Act; Article 4 of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted = utlänningslag 87 §, 88 §, 88a § och 95 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar och personer som uppfyller kraven för att betecknas som subsidärt skyddsbehövande, och för innehållet i det beviljade skyddet artikel 4 = ulkomaalaislaki 87 §, 88 §, 88a § ja 95 §; perustuslaki 9 § 4 mom.; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojelun sisällölle artikla 4. ECHR-3; ECHR-8; Articles 18 and 19 of the Charter of Fundamental Rights of the European Union Abstract X was originally from Tanzania and had arrived in Finland in 2005.He had been issued with a residence permit for studying until July 2010 and thereafter a new residence permit for an employed person until May 2012.He then applied for an extended permit, twice as an employed person and then as a student.The applications were rejected.In April 2014, the Immigration Service decided that X is deported to Tanzania.The administrative court dismissed X's appeal because it had not been submitted within prescribed time.X then applied for asylum, claiming that if returned to Tanzania, he would be subjected to persecution because of his sexual orientation as a gay man. The Immigration Service rejected the asylum application.It found, e.g., that there were inconsistencies in X's account of his alleged persecution and that the credibility of his account was further diminished by the fact that he had invoked sexual orientation only after he had been denied an extended residence permit and was facing deportation.The administrative court rejected X's appeal.The court did not as such doubt that X was a homosexual, but noted that X had not manifested his sexual orientation in public in Tanzania nor in Finland.The court concluded that, having spent several years abroad, X had no well-founded cause to fear that he would be subjected to repeated violations of rights or serious harm in his home country.X appealed further to the Supreme Administrative Court. The Supreme Administrative Court found that the fact that X had declared his sexual orientation only when he was facing deportation was not of importance when assessing the credibility of his statements.His previous applications for a residence permit as a student or an employed person had not required that he should have disclosed his sexual orientation.The court concluded that X had had reasonable grounds to file his application for asylum only after several years of residence in Finland. With reference to the decision of the Court of Justice of the European Union in the joined cases X et al.C-199/12 to C-201/12 (7 November 2013), the Supreme Administrative Court noted that a person's sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it.An applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution.It is also not reasonable to expect that the person should exercise restraint in expressing his sexual orientation.The Supreme Administrative Court concluded that the administrative court could not base its assessment of the need for protection on the fact that X had not been open about his sexual orientation.Instead, the decision should have been based on an overall assessment of the situation in Tanzania as well as X's personal circumstances. The Supreme Administrative Court noted that sexual minorities in Tanzania were at risk of being subjected to discrimination.While sexual acts between same-sex couples are illegal in Tanzania, the law is rarely applied.Also, the criminalisation of homosexual acts alone does not, in itself, constitute persecution.The court recalled that after his alleged arrest as a homosexual in 1993 X had stayed in Tanzania until 2001 when he had left the country in order to study in Malesia.The court found that there were inconsistencies in X's original statements which he had not been able to clarify during the appeal process.Despite more specific questions presented to X during his asylum interview, his account lacked details suggesting personal experience.Based on an overall assessment of the relevant country information and X's personal circumstances, the Supreme Administrative Court concluded that X had no well-founded fear of being subjected to persecution or serious harm if returned to Tanzania.His appeal was rejected. 2.3.2017 / 2.3.2017 / RHANSKI
|
|
|
|
| [4 / 7] |
Date when decision was rendered: 7.7.2017 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 324/4/17; 3418 Reference to source KHO 2017:120. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
asylum,
aliens,
homosexuality,
sexual orientation,
oral hearing,
Relevant legal provisions sections 87, 87b, 88 and 147 of the Aliens Act; sections 33, 37 and 38 of the Administrative Judicial Procedure Act; Article 4 of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or persons eligible for subsidiary protection, and for the content of the protection granted = utlänningslag 87 §, 87b §, 88 § och 147 §; förvaltningsprocesslag 33 §, 37 § och 38 §; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar och personer som uppfyller kraven för att betecknas som subsidiärt skyddbehövande, och för innebörden i det beviljade skyddet artikel 4 = ulkomaalaislaki 87 §, 87b §, 88 § ja 147 §; hallintolainkäyttölaki 33 §, 37 § ja 38 §; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojan sisällölle artikla 4 Abstract X, from Gambia, had applied asylum based on fear of persecution on grounds of his sexual orientation.The Finnish Immigration Service rejected the application.The administrative court upheld the decision.X had requested an oral hearing before the administrative court but the court held that an oral hearing was manifestly unnecessary and the matter could be decided relying on the documents presented as well as available country information.X appealed further to the Supreme Administrative Court. The Supreme Administrative Court noted that according to country reports, persons belonging to sexual minorities in Gambia have been subjected to discrimination and physical violence.Therefore, it is important to assess the credibility of the declared sexual orientation of an asylum applicant from Gambia, when the application is based on a fear of persecution on grounds of that sexual orientation.Both the Immigration Service and the administrative court had found that X's sexual orientation had not been proven.X's description of the development of his sexual identity had been very limited and he had given contradictory information in his statements.The Immigration Service and the administrative court had also held that the credibility of X's statements was diminished by the fact that he had not referred to his homosexuality as an asylum ground in the initial asylum interview conducted by the police and had only done so at a later stage, in the asylum interview at the Immigration Service.X claimed that at the time of the initial interview he had been unwell and had been receiving hospital treatment.Some two weeks after the initial interview, X's councel had submitted to the Immigration Service a written statement in which X claimed international protection on the grounds of his sexual orientation.The Supreme Administrative Court noted that while the applicant has a duty to submit as soon as possible all the elements needed to substantiate the application, in X's circumstances, the fact that he had not referred to his homosexuality in the initial interview could not be regarded as decisive when assessing the credibility of his statements. The Supreme Administrative Court stated that the applicant's own testimony is the primary and often the only source of evidence when assessing the credibility of declared sexual orientation.In an oral hearing it would have been possible to seek more clarification concerning the formation of X's sexual identity, and whether and how he has expressed his sexual identity in his home country and whether there have been any adverse consequences.Therefore, an oral hearing, as requested by X, had not been manifestly unnecessary, in the meaning of section 38 of the Administrative Judicial Procedure Act.The Supreme Administrative Court referred the case back to the administrative court, for an oral hearing and a reconsideration of the matter. In its decision, the Supreme Administrative Court referred to the case law of the Court of Justice of the European Union (C-148/13, C-149/13 and C-150/13, A et al.), concerning the interpretation of the Qualification Directive in the light of the Charter of Fundamental Rights of the European Union and the assessment of facts and circumstances concerning the declared sexual orientation of an asylum applicant, whose application is based on a fear of persecution on grounds of that sexual orientation.The court also referred to the judgment (19 April 2016) of the European Court of Human Rights in the case of A.N. v.France, and its own previous decisions KHO 2016:174 (sexual orientation) and KHO 2017:63 (religious affiliation). 7.5.2018 / 7.5.2018 / RHANSKI
|
|
|
|
| [5 / 7] |
Date when decision was rendered: 13.4.2018 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3891/4/17; 1762 Reference to source KHO 2018:52. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
asylum,
aliens,
homosexuality,
sexual orientation,
Relevant legal provisions sections 7-2. 87-1, 87b-4, 87b-5, 88-1 and 147 of the Aliens Act; sections 33, 42 and 51-1 of the Administrative Judicial Procedure Act; Article 4 of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or persons eligible for subsidiary protection, and for the content of the protection granted; Article 46-1-a of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection = utlänningslag 7 § 2 mom., 87 § 1 mom., 87b § 4 och 5 mom., 88 § 1 mom. och 147 §; förvaltningsprocesslag 33 §, 42 § och 51 § 1 mom.; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för enhetlig status för flyktingar eller personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innebörden i det beviljade skyddet artikel 4; Europaparlamentets och rädets direktiv 2013/32/EU om gemensamma förfaranden för att bevilja och återkalla internationellt skydd artikel 46-1-a = ulkomaalaislaki 7 § 2 mom., 87 § 1 mom., 87b § 4 ja 5 mom., 88 § 1 mom. ja 147 §; hallintolainkäyttölaki 33 §, 42 § ja 51 § 1 mom.; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojan sisällölle artikla 4; Euroopan parlamentin ja neuvoston direktiivi 2013/32/EU kansainvälisen suojelun myöntämistä tai poistamista koskevista yhteisistä menettelyistä 46 artikla 1 kohta a alakohta. Articles 1 and 7 of the Charter of Fundamental Rights of the European Union Abstract X, who was from Baghdad, Iraq, had applied for asylum based on a fear of persecution on grounds of his sexual orientation.The Finnish Immigration Service rejected the application, and X appealed against the decision to the administrative court.The court noted that various recent country reports had documented violence against homosexuals in Iraq.X was also heard in an oral hearing before the administrative court.However, the court found that X's statements concerning his homosexuality were not credible.There were inconsistencies and contradictions and X had also repeatedly changed his statements.The court rejected X's appeal. When appealing to the Supreme Administrative Court X submitted as evidence a photograph and a video recording of intimate acts between himself and another man.In its decision, the Supreme Administrative Court assessed the admissibility of such evidence.The court referred to the case law of the Court of Justice of the European Union (C-148/13, C-149/13 and C-150/13, A et al.; and C-473/16, F), concerning the interpretation of the Qualification Directive in the light of the Charter of Fundamental Rights and the limits imposed on national authorities when assessing the facts and circumstances concerning the declared sexual orientation of an asylum applicant, whose application is based on a fear of persecution on grounds of that sexual orientation.With reference also to the UNHCR guidelines, the Supreme Administrative Court noted that the applicant's own testimony is the primary source of evidence.A court cannot require applicants to provide photographs or video recordings of intimate acts ins support of their application for asylum based on a fear of persecution on grounds of sexual orientation.Such evidence would of its nature infringe human dignity and the right to private life, even in cases where the persons had voluntarily agreed to being filmed. Regarding admissibility of evidence, the Supreme Administrative Court then noted that in the national administrative procedure, free evaluation of evidence is the general rule.The way evidence is presented has not been restricted, and there are no detailed rules concerning analysis on the probative value of evidence.However, submitting photographs or video recordings of intimate acts as evidence is problematic with regard to the protection of human dignity and the right to private life.The Supreme Administrative Court, nevertheless, found that because of the theory of free evaluation of evidence and the protection of the procedural rights of the applicant, the court could not completely refuse to accept such evidence when submitted at the applicant's own initiative and in order to support his claim for international protection.The Supreme Administrative Court emphasised that the main issue was the assessment of the credibility of the applicant's statements concerning his declared sexual orientation and sexual identity, not the practice of homosexual acts.In this case the credibility assessment was based on the applicant's statements made in the various stages of the application process and in the oral hearing before the administrative court.The photograph and video recording could not undermine the finding that there were inconsistences and contradictions in the applicant's statements.Such material had no role in the assessment and it did not thus support the applicant's claim for international protection.The Supreme Administrative Court upheld the decision of the administrative court and dismissed X's appeal. 7.5.2018 / 5.10.2018 / RHANSKI
|
|
|
|
| [6 / 7] |
Date when decision was rendered: 22.9.2017 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 4072/4/16; 4639 Reference to source KHO 2017:148. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
asylum,
aliens,
homosexuality,
sexual orientation,
oral hearing,
Relevant legal provisions sections 87-1, 87a-1, 87b, 88-1, 88a-1, 88e and 147 of the Aliens Act; sections 33, 37-1 and 38-1 of the Administrative Judicial Procedure Act; section 9-4 of the Constitution Act; Article 4 of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or persons eligible for subsidiary protection, and for the content of the protection granted; Article 46 of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection = utlänningslag 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 88a § 1 mom., 88e § och 147 §; förvaltningsprocesslag 33 §, 37 § 1 mom. och 38 § 1 mom.; grundlagen 9 § 4 mom.; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationell skydd, för en enhetlig status för flyktingar och personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innebörden i det beviljade skyddet artikel 4; Europaparlamentets och rådets direktiv 2013/32/EU om gemensamma förfaranden för att bevilja och återkalla internationellt skydd artikel 46 = ulkomaalaislaki 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 88a § 1 mom., 88e § ja 147 §; hallintolainkäyttölaki 33 §, 37 § 1 mom. ja 38 § 1 mom.; perustuslaki 9 § 4 mom.; Euroopan parlamenting ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojan sisällölle 4 artikla; Euroopan parlamentin ja neuvoston direktiivi 2013/32/EU kansainvälisen suojelun myöntämistä tai poistamista koskevista yhteisistä menettelyistä 46 artikla. ECHR-3; Articles 18 and 19 of the Charter of Fundamental Rights of the European Union Abstract X, from Iraq, had applied for asylum in Finland.He claimed he was persecuted by religious fundamentalists in Iraq because of his profession as a musician and because of his liberal lifestyle.X told he had received threatening letters in which his lifestyle had been criticized and in which he was accused of "being like a homosexual".In the asylum interview X admitted that the accusations concerning his lifestyle were true but he denied being a homosexual.The Finnish Immigration Service rejected X's application.In his appeal to the administrative court, X claimed that in Iraq he would be subjected to persecution because of his sexual orientation.The court found that X's statements were contradictory and that the credibility of his statements was diminished by the fact that he had not referred to his homosexuality as an asylum ground in the asylum interview and had only done so later, in the proceedings before the administrative court.X had requested an oral hearing, bu the administrative court held, with reference to section 38 of the Administrative Judicial Procedure Act, that an oral hearing was manifestly unnecessary in this case. On X's appeal, the Supreme Administrative Court considered both the credibility of X's statements and the necessity of an oral hearing.The court noted that recent country reports on Iraq had documented that persons belonging to sexual minorities had been subjected to physical violence, discrimination and honour killings.Therefore, it could not be excluded that X could be in need of international protection on grounds of his sexual orientation.The court then noted that, as a rule, it is the duty of an asylum applicant to submit all the elements needed to substantiate the application already when submitting the application.The credibility of any new elements, submitted in support of the application later before a court, is assessed on a case-by-case basis.Although in this case X had not referred to his homosexuality as an asylum ground in his asylum application and had in the asylum interview denied being a homosexual, he had explained in the administrative court his reasons for doing so.Before the Supreme Administrative Court, X had further elaborated on his reasons and had also submitted to the court additional information concerning his personal life and intimate relations.The Supreme Administrative Court found that the fact that X had not disclosed his sexual orientation in the asylum interview did not alone give reason to conclude that X's account lacked credibility.Also, the fact that X had in the asylum interview denied being homosexual could not be regarded as decisive when assessing the credibility of X's sexual orientation later during the process. The Supreme Administrative Court stated that the applicant's own testimony is the primary and often the only source of evidence when assessing the credibility of declared sexual orientation.In an oral hearing before the administrative court it would have been possible to seek more clarification concerning the formulation of X's sexual identity, and whether and how he has expressed his sexual identity in his home country and whether there have been any adverse consequences.Therefore, an oral hearing had not been manifestly unnecessary.The Supreme Administrative Court referred the case back to the administrative court, for an oral hearing and a reconsideration of the matter. In its decision, the Supreme Administrative Court referred to the case law of the Court of Justice of the European Union (C-148/13, C-149/13 and C-150/13, A et al.), concerning the interpretation of the Qualification Directive in the light of the Charter of Fundamental Rights and the assessment of facts and circumstances concerning the declared sexual orientation of an asylum applicant, whose application is based on a fear of persecution on grounds of that sexual orientation.The court also referred to the inadmissibility decision of the European Court of Human Rights in the case of A.N. v France, concerning alleged risk of ill-treatment of a homosexual man in the event of his being returned to his home couhtry Senegal.The human righte court held that national authorities can best assess the credibility of an applicant's account when they can see and hear the applicant.The applicant had in this case been heard both in the first instance and in the appeal court and both instances had found his account implausible. 3.7.2018 / 4.7.2018 / RHANSKI
|
|
|
|
| [7 / 7] |
Date when decision was rendered: 15.6.2018 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 894/4/18; 2886 Reference to source KHO 2018:90. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieminiesteriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
asylum,
aliens,
homosexuality,
sexual orientation,
oral hearing,
Relevant legal provisions sections 87-1, 87a-1, 87b, 88-1, 101 and 147 of the Aliens Act; sections 33, 37-1 and 38-1 of the Administrative Judicial Procedure Act; Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection = utlänningslag 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 101 § och 147 §; förvaltningsprocesslag 33 §, 37 § 1 mom. och 38 § 1 mom.; Europaparlementets och rådets direktiv 2013/32/EU om gemensamma förfaranden för att bevilja och återkalla internationellt skydd artikel 46 = ulkomaalaislaki 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 101 § ja 147 §; hallintolainkäyttölaki 33 §, 37 § 1 mom. ja 38 § 1 mom.; Euroopan parlamentin ja neuvoston direktiivi 2013/32/EU kansainvälisen suojelun myöntämistä ja poistamista koskevista yhteisistä menettelyistä 46 artikla. ECHR-3; Articles 1 and 47 of the Charter of Fundamental Rights of the European Union Abstract The Finnish Immigration Service had rejected X's asylum application as manifestly unfounded and had ordered that X is returned to his home country Iraq.X filed a new asylum application, this time referring to his homosexuality as an asylum ground.The Immigration Service found that the application lacked credibility and was manifestly unfounded.The administrative court upheld the decision.The Immigration Service had not admitted as evidence a video recording which X had submitted and which according to him showed intimate acts between himself and another man.With reference to the judgment of the Court of Justice of the European Union in the case of A et al.(C-148/13, C-149/13 and C-150/13), also the administrative court found this type of evidence inadmissible as infringing human dignity, guaranteed in Article 1 of the EU Charter of Fundamental Rights.X requested an oral hearing, but the administrative court held, with reference to section 38 of the Administrative Judicial Procedure Act, that an oral hearing was manifeslty unnecessary in this case. Based on recent country reports on Iraq, the Supreme Administrative Court found that it could not be excluded that X could be in need of international protection on grounds of his sexual orientation.Therefore, assessing the credibility of X's statements concerning his homosexuality was of major importance.The Supreme Administrative Court noted that, as a rule, it is the duty of an asylum applicant to submit all the elements needed to substantiate the application already when submitting the application.The credibility of any new elements, submitted in support of the application later in the process, is assessed on a case-by-case basis.The applicant's own testimony is the primary and often the only source of evidence when assessing the credibility of declared sexual orientation.The court held that, because of the theory of free evaluation of evidence and the protection of the procedural rights of the applicant, video recordings of sexual behaviour can be admitted as evidence (see KHO 2018:52 of 13 April 2018).However, the value of such recordings as evidence is limited, as compared to the assessment of the applicant's own testimony.In this case, X had explained why he had not declared his homosexuality when filing his first asylum application.He had also submitted additional information to the Supreme Administrative Court and had told the court he was currently in a relationship with a man who was willing to appear as a witness.The court found that the fact that X had not disclosed his sexual orientation in his first asylum application did not alone give reason to conclude that X's account lacked credibility. Regarding the question of oral hearing, the Supreme Administrative Court took note of the judgment of the Court of Justice of the European Union in the case of Moussa Sacko (C-348/16), in which the CJEU held that the national court hearing an appeal against a decision rejecting a manifestly unfounded application for international protection can dismiss the appeal without hearing the applicant, provided that the decision in the first instance was based on full examination of the facts and law and the applicant was heard.The Supreme Administrative Court also referred to the inadmissibility decision (19 April 2016) of the European Court of Human Rights in the case of A.N. v France, concerning alleged ill-treatment of a homosexual man in the event of his being returned to his home country Senegal.The human rights court held that national authorities can best assess the credibility of an applicant's account when they can see and hear the applicant, and that the applicant had been heard both in the first instance and the appeal court and both instances had found his account lacked credibiity. In the present case, X had requested an oral hearing before the administrative court, in order to give more information about his sexual orientation and the situation of homosexuals in Iraq.He had also referred to the video recording as evidence.The administrative court had considered it possible that X had been involved in homosexual acts, but had found X's account of his declared sexual orientation perfunctory and implausible.The court had also not admitted the video recording as evidence.The Supreme Administrative Court found that in an oral hearing before the administrative court it would have been possible to seek more clarification concerning the formation of X's sexual identity, and whether and how he has expressed his sexual identity in his home country and whether there have been any adverse consequences.It would also have been possible to assess the relevance of the video recording as evidence.The court concluded that the credibility of X's testimony could not have been reliably assessed without giving him the opportunity to be heard before the administrative court.When considering an applicant's request for an oral hearing in order to assess the applicant's credibility, the fact that the application has been found manifestly unfouded in the first instance is not decisive.The Supreme Administrative Court quashed the decision of the administrative court and referred the case back to the administrative court for an oral hearing and a reconsideratin of the matter. 6.7.2018 / 6.7.2018 / RHANSKI
|
|
|
|