This applicant, a Senegalese national, filed an appeal to the Luxembourg Administrative Court on the 2 of May 2022 against a negative decision on his subsequent application for international protection was rejected by the Administrative Tribunal as unfounded. The Administrative Tribunal confirmed the decision of the Ministry of Immigration and Asylum to reject his application for asylum in accelerated procedure as unfounded because Senegal is considered a safe country of origin and there was no indication to the contrary in the applicant’s circumstances.

During the first procedure, the Ministry of Immigration and Asylum questioned the general credibility of the application as it found temporal inconsistency. The Ministry questioned the fact that the applicant presented his bisexual orientation very late, he did not mention it during his initial asylum application, but he has claimed religious and family problems. The Ministry questioned his real need for protection due to the late application and the fact that he did not apply for asylum in France where he lived for 5 years. The ministry rejected his international protection application by considering that the violence he allegedly suffered due to being of Christian religion cannot be qualified as an act of persecution under the Geneva Convention because it does not reveal such a degree of seriousness as to render life in Senegal intolerable.

The Ministry underlined the fact that the applicant did not pursue legal action against the alleged acts of violence and that, his fears related to his bisexuality are to be considered as unfounded because the applicant did not report any persecution or incident related to his sexual identity, qualifying his fears as hypothetical and therefore not eligible for refugee status. The Ministry underlined that members of the LGBTI community are not systematically imprisoned by the Senegalese authorities and that the mere existence of legislation penalizing homosexual acts is not sufficient to establish a risk of persecution based on sexual orientation for an applicant. Finally, the Ministry considered that his fear regarding the theft of a sum of money from his father and the risk of reprisal cannot justify the granting of refugee status, or access to subsidiary protection.

In its judgment of 1 April 2022, the Administrative Tribunal confirmed the Ministry’s decision and dismissed the appeal lodged by the applicant.

The applicant contested the decision and argued an erroneous assessment of his situation. According to the applicant, the Tribunal focused solely on the few inconsistencies in his story to question the overall credibility of his story and did not consider the psychological suffering and his personal security due to the anti-homosexuality law in Senegal and the hostility of civil society towards the homosexual minority. The applicant alleged to have suffered persecution and extreme violence related to his sexual orientation. In addition, based on several report, he claimed that victims of severe trauma can provide a history with inconsistency. Regarding the refusal of subsidiary protection, he argued that homosexuality is punishable by 5 years of imprisonment in Senegal, constituting inhuman and degrading treatment, and that there is no evidence that he will not suffer further serious harm if he returns, even if he would no longer be required to live with his father.

The Administrative Court noted that the lower court rightly pointed out that, insofar as the conditions regarding the criteria for granting asylum status or the subsidiary protection status must be met cumulatively, the fact that one of them is not validly met is sufficient to conclude that the applicant cannot benefit from refugee status or subsidiary protection. The Administrative Court added that the examination of the personal situation of the applicant and the current situation Senegal are not limited to the relevance of the alleged facts, but also includes the assessment of the value of the evidence and the credibility of the applicant's statement. Finally, the Administrative Court stated  that the Administrative Tribunal rightly underlined that if there is a lack of evidence to support the statements of the applicant, he or she  must be given the benefit of the doubt if, in general, his story can be considered overall credible, if he has made a genuine effort to substantiate his claim, if he has provided all the available elements, and if his statements are consistent with the information available.

The Administrative Court confirmed the analysis of the applicant’s particular circumstances by the Administrative Tribunal and noted that omission of key elements of the applicant’s sexual orientation during his first hearing undermined the overall credibility. The Administrative Court stated that the Administrative Tribunal rightly concluded that the perpetrators of the violence that the applicant allegedly experienced in his family circle are private persons who can only be qualified as persecution actors if the Senegalese authorities are unable to provide protection against persecution. The Administrative Court considered that is not the case in the situation of the applicant because he did not file a complaint and cannot blame the Senegalese state authorities for not helping him. Moreover, the Administrative Court confirmed that the applicant failed to establish that he has been persecuted or that he can still claim a well-founded fear of persecution as well as the risk of being subjected to inhuman or degrading if he returns to Senegal. In light of these arguments, the Administrative Court confirmed the decision of the Administrative Tribunal of dismissing the application.