Decision rejecting asylum applicant’s asserted homosexuality was lawful

Judicial review – asylum and immigration – substantive hearing – Malawian national challenging the decision of the Refugee Applications Commissioner Tribunal to refuse him refugee status – standard of proof - whether or not the balance of probabilities is appropriate – argued that no objective assessment was carried out in relation to his stated sexual orientation of homosexual but rather that conclusion was made based on stereotyped notion – argued that he was not advised that the party who conducted the s. 11 interview would not be partaking in the balance of the process and this was in breach of fair procedures - asserted fear of persecution in Malawi because of his homosexuality – commissioner found that he was a Zimbabwean national and his claim was assessed as a national of Zimbabwe – rejected his asserted homosexuality – adverse credibility findings - High Court in a previous case found that the correct standard of proof to apply to the history or story of past facts as disclosed by an applicant in the instant type circumstances is that of the balance of probabilities coupled (in appropriate circumstances), with the benefit of the doubt - Court of Justice indicated that the assessment of sexual orientation should not be founded on questions based only on stereotyped notions concerning homosexuals – Court found that the commissioner’s findings were not based on stereotyped notions nor on questions the applicant could not answer but rather on an individual assessment in the current circumstances - rejection of his stated homosexuality was made within jurisdiction without any inherent unfairness or impropriety or without any fundamental flaw - no statutory prohibition on different persons conducting the s. 11 interview to the persons ultimately making the decision - report did not rely in any manner whatsoever on his demeanour – relied on the contradictions and discrepancies identified in the report - no unfairness was occasioned by reason of different personnel conducting the interview and making the ultimate recommendation – whether judicial review is the appropriate remedy – court determined that most appropriate remedy is that of appeal – judicial review refused - decision maker took an individual approach and assessment to his assertions.