The High Court quashed a Refugee Appeals Tribunal decision refusing a Malawian woman’s refugee appeal because the Tribunal had not assessed her claim that she could face persecution in Malawi because she was or was perceived to be a lesbian. The case was remitted for a fresh hearing before a different Tribunal member.
In a judgment delivered on 27 May 2016, Ms Justice Faherty said the applicant’s claim had two strands: fear arising from her human rights and gay rights activism, and fear arising from a former boyfriend telling people in Malawi about her past relationship with a woman in the UK. The Tribunal had considered the activism claim but had not dealt with the claimed risk linked to her actual or imputed sexual orientation.
The applicant had said she was outed after returning to Malawi and that she was assaulted while returning from a meeting in 2011. The Commissioner had accepted that a lesbian, or someone accused of being a lesbian, could face persecution in Malawi, but rejected the application on credibility grounds. The Tribunal later upheld the refusal, citing, among other matters, the applicant’s knowledge of human rights organisations, an acronym she gave for one group, a Facebook document about a women’s organisation, and her delay in seeking asylum in Ireland.
The applicant argued in the High Court that the Tribunal failed to address her sexual-orientation ground and several explanations she had offered about the activism claim. The respondents said her central claim was activism and that the Tribunal had properly assessed and rejected it.
Justice Faherty found that the application material, including interview answers and appeal submissions, was enough to put the Tribunal on notice that the applicant feared being perceived as a lesbian as well as fearing persecution for activism. Because the Tribunal did not assess that part of the claim, the court said it had not given the careful scrutiny required in the papers-only appeal. The judge noted that homosexuality and lesbianism were outlawed in Malawi and said the applicant’s claimed fears had to be assessed in that context.
The court did not overturn the Tribunal’s assessment of the activism claim. It found the credibility findings on that ground were open to the Tribunal and that its reasons were sufficiently clear. It also held that no material consequence followed from the Tribunal’s failure to address the applicant’s argument about “Gollira/guerrilla” groups.
The judge granted an extension of time for the judicial review, which had been issued outside the 14-day limit. She also rejected the respondents’ argument that the applicant’s travel to the UK should prevent relief. The court granted certiorari and remitted the matter to the Refugee Appeals Tribunal for de novo consideration by a different member. It did not decide whether the applicant qualified for refugee status.