The applicant claimed to be a national of Malawi. He applied for asylum and claimed to have a fear of persecution there on account of his homosexuality. Born in 1979, he said that he went to the United Kingdom in 2004 on a six-month visitor’s visa. He overstayed his visa and remained there until 2006. He said that he was not aware of his sexual orientation until he had a sexual relationship with a French man for six months while he was in the United Kingdom.
He left the United Kingdom voluntarily in 2006 and returned home. He said that he did not encounter any difficulties when leaving, and was simply told that if he wanted to return he would need to obtain a visa. He stated that he was aware that homosexuality was a taboo subject in Malawi, but that he did not know that it was illegal and punishable as a crime, something he only became aware of when he returned home. He said that in November 2008, he entered into a homosexual relationship which lasted for just over a year. In December, 2009, he was beaten up outside a nightclub by some men on account of his homosexuality, suffering broken teeth and some scarring to his face. In early 2010, his neighbours found out that he was homosexual. He received a number of threatening letters telling him to leave his home. In February, 2010, he relocated to another town where he remained until early May 2010. However, on his return to his home, he received an anonymous letter threatening to report him to the police.
He left Malawi in May, 2010 arriving in Ireland via Kenya and The Netherlands. He said that he did not claim asylum in Kenya because it was a Muslim country where he would not be tolerated. He did not claim asylum in The Netherlands because the agent told him that he should come to Ireland.
The Refugee Applications Commissioner made a negative recommendation on his application for asylum. The applicant appealed to the Refugee Appeals Tribunal, which affirmed the recommendation.The applicant impugned the decision on a number of grounds, not all of which were successful.
First, the court rejected his claim that the Tribunal had not made a clear finding on whether or not it accepted his claimed nationality. In the court’s view, the decision proceeded on the basis that he was a national of Malawi.
Secondly, the court also held that the Tribunal had accepted that the applicant was homosexual at the time he received the threatening letters in Malawi.
Thirdly, the court also rejected the claim that the Tribunal had erred in failing to make any finding about the alleged assault outside the nightclub and the injuries sustained in it. The court accepted the Tribunal’s argument that it was not necessary to refer to all of the evidence in a decision. The injuries allegedly suffered were extremely non-specific and could, conceivably, have arisen out of a multitude of causes. They did not establish that the applicant had been assaulted as alleged and did not call for a detailed or reasoned refutation, as would be the case for specific or unusual injuries with a particular nexus to the persecutory acts that were asserted.
Fourthly, the court upheld the Tribunal’s finding that it was not credible that the applicant was unaware that homosexuality was illegal in Malawi, especially as he knew it was taboo there and he had been in a homosexual relationship in the United Kingdom before he returned home.
In addition to those grounds, the applicant contended that the Tribunal had erred in finding that all of the threatening letters had been received by him before he relocated within Malawi. He argued that that was a fundamental mistake of fact, as it was the final anonymous letter which was crucial in his decision to flee Malawi. He also contended that the Tribunal had erred in relying on Hathaway’s “The Law of Refugee Status” in finding that there was an obligation on him to apply for asylum in the first safe country in which he arrived.
The court held that the Tribunal had erred in fact in finding that the threatening letters had all been received by the applicant before he relocated in Malawi. Its timing was crucial because it triggered his flight to Ireland. Had the Tribunal properly evaluated the evidence, it might have reached a different conclusion on his credibility.
The court also held that the Tribunal had erred in making an adverse credibility finding on the basis of the applicant’s failure to apply for asylum in Kenya or The Netherlands. It had selectively quoted from Hathaway in making that finding.
It was not possible to sever those findings as they were expressed by the Tribunal to have had a cumulative effect in the assessment of credibility.
The court therefore quashed the Tribunal’s decision.