The High Court has quashed a decision rejecting a Malawian applicant’s international protection appeal and remitted the matter to another tribunal member for reconsideration. The court did not decide whether the applicant was entitled to protection; the previous tribunal decision has been set aside.
The applicant, identified in the judgment as J.M. (Malawi), sought protection on the basis of a fear of persecution because of his sexual orientation. The International Protection Office refused his claim on credibility grounds. On appeal, the International Protection Appeals Tribunal found him credible but concluded that he had not established a well-founded fear of persecution.
After the tribunal hearing, the applicant’s solicitor sent it a medical report and a decision in another case involving a claim of persecution or serious harm in Malawi on grounds of sexual orientation. The High Court said there was no complaint about the tribunal’s handling of the medical report. The issue was its refusal to accept the other decision for consideration.
The tribunal member had said the other decision was not relevant or probative because it concerned a different case and was not binding. The High Court agreed that tribunal decisions do not bind other tribunal members. But it held that, in the unusual circumstances here, the applicant should have been allowed to rely on the later decision and have the argument considered. That decision had not been available at the time of the hearing, and the applicant could not have raised it earlier. The court said fairness required consideration of the submission, without requiring the tribunal member to follow the other decision.
The court also found a separate error: the tribunal decision said it would return to the question of non-state actors but did not do so. The respondents accepted that omission. The High Court held that this was an error on the face of the decision.
Because the identified errors affected too much of the tribunal’s decision for a partial quashing to be meaningful, the court ordered certiorari quashing the decision and remitted the matter to another tribunal member for reconsideration. The judgment was delivered on 20 November 2018.