Failure to investigate alleged anti-gay laws in country of origin in asylum application

Judicial review – whether an applicant is permitted to seek judicial review of the decision of Refugee Applications Commissioner prior to an appeal to the Refugee Appeals Tribunal - consistent jurisprudence of the Superior Courts is that intervention by way of judicial review in respect of decisions of the Commissioner is rarely permitted - only in cases which at least involve errors as to jurisdiction - even then, court retains discretion to refuse - whether there are errors as to jurisdiction - whether the applicant may seek judicial review as opposed to pursuing an appeal to the tribunal – Malawian national lived in Zimbabwe – he is gay - discovered by his family - he was attacked by his relatives and suffered injury to his head requiring hospitalisation – fled to Malawi, but the situation was not better there – returned to Zimbabwe and then fled to Ireland – procedures for an application for asylum – argues that the asylum claim was based on a fear of being prosecuted and jailed by state authorities, as well as fear of his family - Commissioner seeks to argue that the applicant’s true asylum claim was based on a fear of his family and the interview, it is said, reflects this fact – court held that the claim for asylum is that which is expressed in the questionnaire - authorised officer perceived the Malawian’s claim to be based on being persecuted by his family driven by their negative reaction to discovering his sexuality, and an attack by his uncle, combined with the failure of the police to protect him when he reported the incident and his fears - whether he had a well founded fear - credibility findings - state protection and internal relocation - authorised officer determined that because the Malawian national’s credibility was seriously undermined by inconsistencies in certain matters in his narrative, his allegations as to the absence of state protection were also rejected as being incredible - no actual investigation of whether the police protect gay people was ever conducted – pleadings – argued that no proper objective or subjective analysis of the applicant’s claim has been undertaken – argued that it was unclear whether this core assertion, that he feared persecution due to his homosexuality, was accepted or otherwise - no analysis of the treatment/persecution of homosexuals in either Zimbabwe or Malawi was undertaken – argued that he was entitled to a decision which is of sufficient clarity to enable the applicant and his advisors to know how best to address any appeal – Commissioner argued that he had a full right of appeal to the tribunal, which has been invoked, and that this application is premature and should not be entertained – principles for when an applicant can judicially review the decision of the Refugee Applications Commissioner rather than appeal to the tribunal - High Court is entitled to grant judicial review in respect of a decision of the Commissioner where an error as to jurisdiction is identified - significance of the error will determine whether the court may exercise its discretion to grant judicial review - not all errors as to jurisdiction attract judicial review - court must carefully consider the nature of the error in deciding whether the interests of justice require the first instance decision to be quashed and taken again rather than the error being the subject of an appeal to the tribunal - alleged errors – court not of the view that the absence of a negative finding in a section 13 report in respect of any central fact advanced by an applicant equates to acceptance of the asserted fact by the decision maker which somehow binds the tribunal - inadequate consideration of an applicant’s core claim - need for clearly expressed decisions - claim for refugee status was based upon a stated fear of being jailed and being sought by the police because he was gay - failure to acknowledge and investigate this aspect of the Malawian national’s claim for asylum was unlawful - rules governing the duty of investigation of asylum claims - whether the authorised officer in this case was obliged, as a matter of law, to investigate the legal regime for homosexuals in Zimbabwe and Malawi once the applicant indicated he feared prosecution for being gay - he did not use these words on his application form, but his repeated references to a fear of being jailed can only mean he feared criminal prosecution - whether the existence of criminal statutes relating to homosexuals constituted an act of persecution - the term of imprisonment which accompanies a legislative provision which, like those at issue in the main proceedings, punishes homosexual acts is capable, in itself of constituting an act of persecution provided that it is actually applied in the country of origin which adopted such legislation – nature of the error - legal issue not contemplated when the proceedings were initiated.