The applicant, a national of Lebanon, requested international protection on 15 January 2016. He claimed to be homosexual and had kept this secret in his home country until he was caught engaging in sexual acts with a man and sentenced to prison in 2015. He feared facing significant psychological and physical threats due to his sexual orientation if returned to Lebanon. On 17 October 2018, the Federal Office for Foreign Affairs and Asylum (BFA) rejected the application, finding that the applicant did not credibly demonstrate any fear of persecution relevant to asylum. The applicant appealed this decision before the Federal Administrative Court.

The Federal Administrative Court observed that the applicant submitted the judgment dated 7 July 2015, in which he was convicted for acts against the laws of nature or causing public annoyance (Articles 531 and 532 of the Lebanese Criminal Code) and offenses related to sexual intercourse under Article 534 of the Lebanese Penal Code. The court noted that the authenticity of this decision was confirmed through a review by a lawyer from the Austrian Embassy in Beirut. The applicant also submitted the decision of a Higher Regional Court for Criminal Matters, which, as a result of the appeal lodged on 7 October 2015, reduced the nine-month sentence to the period from 17 June 2015 to 16 July 2015, and imposed a fine. The Federal Administrative Court held that the clearly established conviction for same-sex acts served as strong evidence of the applicant's sexual orientation.

The court also noted that the applicant stated he had openly lived his homosexuality in Austria and had been in a few short-term homosexual relationships. It determined that, based on his experiences in Lebanon, including his arrest and conviction while in detention, as well as his lifestyle in Austria, it could be assumed that his sexual orientation was a defining aspect of his identity and that he wished to continue living his homosexuality openly and freely.

As regards the attacks allegedly suffered by the applicant upon his release from prison, the court noted that he reported being abducted and tortured, coerced into insulting various groups, which led to him becoming a target of persecution by Hezbollah, Alawites, and Islamists. Additionally, he alleged further harassment, including attempted kidnapping and threatening phone calls. The court noted significant discrepancies between the description of these events presented during the personal interview with the BFA and the court hearing. The accounts presented were substantially different. In light of both the temporal and substantive contradictions, the court deemed that the applicant was unable to credibly demonstrate that the alleged acts of persecution occurred after his release from prison. Accordingly, the applicant was not able to credibly demonstrate that acts of persecution occurred on account of his homosexuality. Moreover, the court found that the applicant was unable to credibly demonstrate that his entire family had turned away from him due to his sexual orientation. It emphasized that his brother-in-law had actively helped him appeal the verdict for sexual acts with a man, which was a clear sign of acceptance and cohesion within the family. Additionally, the applicant had maintained regular contact with a sister, which further indicated that there had not been a complete break within the family. This clearly demonstrated that at least part of the applicant’s family continued to have a positive and supportive attitude towards him and had not turned away due to his sexual orientation.

As regards the treatment of LGBTI individuals in Lebanon, the court observed that laws criminalizing consensual same-sex sexual acts between adults exist and are applied in Lebanon. More specifically, Article 534 of the Lebanese Criminal Code, which condemns 'any sexual intercourse contrary to the laws of nature,' has been used in the past to prosecute individuals for same-sex relationships, punishable by up to one year in prison. The court noted that although there is no widespread police or judicial prosecution of individuals suspected of homosexuality, occasional harassment, including violent attacks, is reported against LGBTI persons by security forces and religious groups. There is no government effort to address potential discrimination. Hence the court concluded that, in light of the country reports, combined with the information provided by the applicant regarding his criminal conviction for same-sex acts with a man, which resulted in a custodial sentence of about one month as well as a fine, a threat to his person appears significantly likely.

Considering the situation of homosexual individuals in Lebanon, the conviction of the applicant as documented by judicial records, and the fact that he freely and openly lived out his homosexual orientation in Austria, the court held that it could not be ruled out with decisive certainty that he would face serious danger to his person if he returned. It also specified that he could not be required to conceal his homosexual orientation in order to avoid possible reprisals. The court specified that, although the acts of persecution indicated by the applicant after his release from prison were contradictory and therefore unreliable, it was accepted that the applicant was homosexual and that he was likely to face persecution in Lebanon because of his sexual orientation. The applicant was thus able to substantiate his claim that, if he returned to Lebanon, he would be threatened with persecution due to his open and publicly practiced homosexuality.

In its legal analysis, the court referenced the CJEU judgment in Minister voor Immigratie en Asiel v X, Y, and Z v Minister voor Immigratie en Asiel (Joint cases C-199/12, C-200/12, C-201/12, 7 November 2013), which established that, when examining the grounds for persecution, two conditions must be cumulatively fulfilled: on the one hand, members of such a group must share characteristics or beliefs that are so fundamental to their identity that they should not be forced to renounce them; on the other hand, the group must have a clearly defined identity in the country of origin, as it is regarded as different by the surrounding society. In that judgment, the CJEU also held that Article 10(1)(d) of the recast Qualification Directive (recast QD) must be interpreted to mean that the existence of criminal provisions specifically targeting homosexual individuals allows for the conclusion that those persons should be regarded as a particular social group.

The court therefore concluded that, in the specific circumstances of the case, the applicant would be exposed to a significant risk upon his return to Lebanon due to his homosexuality, particularly in relation to the potential risks posed by state actors as members of the social group of homosexual individuals. The court found that, in light of the applicant’s personal characteristics and the situation in the country of origin, he would be significantly likely to face a nationwide threat from state actors, combined with serious interference with his legal rights. Additionally, it held that the applicant could not expect, given the current situation in his home country, to receive adequate state protection against possible attacks by security forces based on the established reasons. In conclusion, the court upheld the appeal and granted the applicant refugee status pursuant to Paragraph 3(1) of the AsylG.