Tribunal finds asylum seeker is not gay despite his photos at Pride events

Gordon Deegan

An appeals tribunal has found that a Malawi man is not gay despite the man showing photos of himself attending a Pride parade and his participation in a Galway LGBTQI+ organisation.

In the case, a High Court judge has refused the man an application to judicially review a decision by the International Protection Appeals Tribunal (IPAT) affirming a recommendation that the man be refused refugee status and subsequent decisions by the Minister of Justice, Jim O’Callaghan in May this year, refusing the man international protection and permission to remain.

The man was seeking International Protection after claiming that he is gay and asserted that he suffered violence and threats in Malawi on account of his sexual orientation.

The man - born in 1998 - claims to have been assaulted in his youth following discovery of a same-sex relationship and later threatened by the parents of a male partner.

In a High Court ruling, Judge Siobhán Phelan has refused the application for a judicial review of the IPAT decision made in April.

Judge Phelan said that IPAT identified a series of inconsistencies and implausible elements which it regarded as undermining the Applicant's claim that he is a gay man and that he had suffered persecution in Malawi on that basis.

Judge Phelan also said none of the grounds advanced disclose an arguable legal error of sufficient substance to satisfy the threshold for a High Court judicial review.

In her 15-page ruling, Judge Phelan records that before IPAT, the Applicant relied upon evidence of participation in LGBTQI+ events and organisations in Ireland, including photographs showing attendance at pride events, a letter from a named Irish LGBT group and certificates of participation in community activities.

Judge Phelan said the IPAT rejected the Applicant’s claim that he is a gay man, finding significant inconsistencies in the chronology and circumstances of the relationships and incidents relied upon as constituting persecution.

Judge Phelan said the Tribunal accepted that the Applicant participated in activities organised by LGBTQI+ groups in Ireland “but concluded that such participation did not establish, on the balance of probabilities, that he was gay”.

The IPAT decision said the applicant had several photos of him attending a Pride parade and photos which indicated that the appellant was involved in an LGBTQI+ organisation in Galway.

It said the appellant had a reference from the same organisation detailing his involvement with the organisation and detailing the possible persecution he would face as a gay man in Malawi.

In addition, the appellant gave evidence that he attends gatherings with this organisation, they discussed their mental health, read books and that he also volunteered with this organisation.

IPAT stated that “while the Tribunal accepts that he attended and participated in these events, the totality of this evidence does not establish, on the balance of probabilities, that the Appellant is a gay man.

“The Tribunal finds the culmination of the written statements and photographic evidence to be of limited probative value in establishing that the Appellant's sexual orientation when viewed alongside the significant credibility concerns identified.”

In her judgment, Judge Phelan found that IPAT’s conclusion was that such involvement with LGBTQI+ organisations in Ireland did not satisfactorily resolve the credibility concerns already identified regarding the Applicant's account of his sexual orientation and experiences in Malawi.

Rejecting the JR application on this ground, Judge Phelan stated that she was not persuaded that substantial grounds are established for contending that the IPAT reasoning is inadequate in that it fails to convey why the claim was rejected or precludes a review of the sustainability of the decision reached.

Judge Phelan found that the IPAT decision demonstrates awareness of the applicant's participation in LGBTQI+ community activities and the fact that this evidence did not persuade the Tribunal does not establish that it was ignored.

Judge Phelan said it is clear from the IPAT decision as a whole that the IPAT did not find Malawi safe for gay men.

She said: “Instead, it found the applicant had not proved he was within that class” adding that the adverse credibility finding was based on personal, internal inconsistencies.

Judge Phelan said the IPAT identified inconsistencies about the duration of relationships, dates of assaults and whether threats or attacks occurred.