The High Court quashed a first-instance decision refusing asylum to an anonymised applicant after finding that the investigation had failed to address his stated fear of prosecution for being gay in Zimbabwe and Malawi.
Mr Justice Mac Eochaidh ruled on 20 February 2015 that the Refugee Applications Commissioner’s authorised officer should have examined the relevant laws in both countries and whether any prison terms were applied in practice. The court held that the omission was a significant error as to jurisdiction and that the exceptional circumstances justified judicial review before the applicant’s appeal to the Refugee Appeals Tribunal.
The applicant, identified in the judgment as P.D., said in his asylum questionnaire that he feared being jailed and attacked because he was gay. He referred to police searches for gay people and said a person had received a 14-year prison sentence. The judgment records that he had completed the questionnaire without legal assistance.
The officer’s report focused on alleged mistreatment by the applicant’s family, credibility concerns and the possibility of internal relocation. It concluded that he had not established a well-founded fear of persecution. The report did not examine whether laws criminalising homosexual acts existed in Zimbabwe or Malawi, what penalties they prescribed, or whether those penalties were imposed.
The court rejected a separate challenge based on the officer not deciding whether the applicant was gay. It found that the officer had treated sexual orientation as unnecessary to decide because the application was rejected on the basis that there was no well-founded fear of persecution. The court said that approach was not itself an error.
But the applicant’s claim also included fear of state prosecution. The judgment said that the questionnaire’s references to imprisonment and police pursuit could only mean that he feared criminal sanctions. Under the applicable Irish and EU rules, the officer had to investigate relevant country laws and how they were applied. The court relied on a Court of Justice of the European Union ruling that criminalisation alone does not necessarily amount to persecution, but an accompanying prison term may do so if it is actually applied.
The judge acknowledged that the Refugee Appeals Tribunal might be able to consider the issue, but found that an appeal would be “inapt” to reverse the failure to investigate the claim under the governing rules. The court therefore granted an order of certiorari quashing the Commissioner’s decision. The judgment does not determine whether the applicant was gay, whether the alleged laws were enforced, or whether he qualified for refugee status.