M.K.H., a national of Bangladesh, of Bengal ethnicity and a Muslim. From July 2010 to July 2011, the author maintained a homosexual relationship with a childhood friend. They were caught one evening at a rice field, following which they were brought to a village council where they were beaten and tortured, including by being hung from a tree, having hot water poured over them and being beaten on the soles of their feet.
The author was expelled from his family and village and was threatened with death if he returned. He first went to Rangpur, where he was recognized by one of the villagers. He then went to Dhaka and in 2012, he moved to India, from where he left for Europe.
In 2012, the author arrived in Denmark without valid travel documents and applied for asylum. He was considered to be older than 18 by the police because of his physical appearance, even though he claimed he was a minor. The Section of Forensic Pathology of the Danish National Police carried out an examination to determine his age. He was estimated to be 19 years old or more. The Immigration Service rejected the author’s asylum claim as not credible, considering that several aspects of his explanations were unreliable. The author appealed to the Refugee Appeals Board, claiming that the information he had provided was accurate, that he was at risk of persecution from the local community and that he would not be able to seek protection in Bangladesh where homosexuality is illegal. He further submitted that he could not be forced to hide his homosexuality to avoid persecution and that as a member of a particular social group exposed to persecution, he was in need of protection in accordance with article 1A (2) of the 1951 Convention relating to the Status of Refugees. The Board upheld the rejection of the author’s asylum application, finding his allegations to be not credible.
He further submits that it is difficult for a minor who has grown up in a country in which homosexuality is linked to stigma and shame to talk openly and elaborate on the grounds of his asylum application when they are linked to his sexual orientation.
In 2014, a statement from a non-governmental organization, LGBT Asylum, confirmed that the author had been a member of the organization since October 2013 and had been taking part in their meetings. The Refugee Appeals Board confirmed its decision, refusing to reopen the asylum proceedings, without examining the new documents submitted by the author.
The Board considered that it was not plausible that the author would be at risk of persecution only because of his homosexuality since, even if homosexuality is illegal in Bangladesh, the relevant legislation is not enforced. The author asserts that the Board should have followed the procedure as applied in other countries. In that connection, he refers to the jurisprudence of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland when determining whether an asylum seeker is a homosexual and whether, if returned to his country of origin, he risks persecution or abuse that would make him entitled to asylum.
As part of the asylum procedure, the applicant stated that the authorities in his country of origin were unable to protect him from the people of his village. The author admitted he did not know about the law, but that he was clear that homosexuality was unacceptable from a religious and social perspective. He also feared starvation in case of his return to his country of origin, as he had no home and no clothing.
The pleading has been presented to the CCPR. The author claims that by returning him to Bangladesh, the State party would put him at risk of torture and other forms of inhuman or degrading treatment or punishment, contrary to article 7 of the Covenant, owing to the risk of persecution he would face there because of his homosexuality.
The Committee considers that, when assessing the risk faced by the author, the State party failed to take adequately into account his version of the events he faced in Bangladesh, the documents he provided and the available background information about the risks faced by lesbian, gay, bisexual and transgender people in Bangladesh, thereby arbitrarily dismissing the author’s claims. In such circumstances, the Committee considers that the author’s deportation to Bangladesh would amount to a violation of article 7 of the Covenant.