Hl (Malaysia) v Secretary of State for the Home Department

This is an appeal with permission granted by Longmore LJ on 7 December 2011 against the decision of the Upper Tribunal (Senior Immigration Judge Jordan) of 2 March 2011 upholding the determination of the First-Tier Tribunal (Immigration Judge Turquet) promulgated on 9 February 2011. The FTT had dismissed the appellant's appeal against the decision of the Secretary of State made on 31 January 2011 to refuse him asylum and set removal directions for his removal to Malaysia.

The appellant is a Malaysian national born on 4 July 1984. He is an ethnic Chinese and a Christian. He first came to the United Kingdom in June 2005 but returned to Malaysia the following month. He came back to the United Kingdom on 15 August 2005 with a student visa valid until 30 April 2006, which was extended to 22 February 2007. He went back again to Malaysia in August 2008 and returned here in February 2009 with a working holiday visa valid until 7 January 2011. He went back to Malaysia again in November 2010, returned here on 1 December 2010. He claimed asylum on 7 January 2011, the day his visa expired.

His case was and is that he fears persecution if he is returned to Malaysia because of his gay orientation. Senior Immigration Judge Jordan summarised his factual claim as follows:

"4. …The basis of the appellant's claim was that since puberty he realised he was gay but, out of a sense of awkwardness, did not discuss this with anyone and suppressed his feelings. Whilst he was at school he had a year-long relationship with a friend called Bernard Lee. The appellant was 18 and Bernard was 16, although they had met about a year before that. Neither the appellant's nor Bernard's family knew of the relationship. It ended after an incident when the appellant was targeted by three unidentified assailants in what was clearly a homophobic attack.

5. Since his arrival in the United Kingdom in 2005, the appellant claimed that he had sexual relations with a number of men but has only had a more substantial relationship with a single individual. Whilst in the United Kingdom, the appellant has visited a number of places frequented by members of the gay community.

6. The appellant has a cousin and a few friends in Malaysia who are aware of his sexuality."

The principal issue in the case is whether the First-Tier Tribunal misapplied the Supreme Court authority of HJ (Iran) and HT (Cameroon) v SSHD.1 AC 596 concerning the conditions in which a gay person should be granted asylum pursuant to the 1951 Refugee Convention on the grounds that he fears persecution if returned to his country of origin on account of his sexual orientation. The appellant submits that there is an inconsistency between the guidance given by Lord Hope in that case at paragraph 35 and that given by Lord Rodger at paragraph 82. Three of the other Justices agreed with Lord Rodger and his guidance accordingly constitutes part of the ratio decidendi of the case. But, says Mr Sheldon QC for the appellant, the FTT and indeed the Upper Tribunal in the present case wrongly followed Lord Hope's guidance. The Secretary of State's case is that there was no inconsistency between Lord Hope and Lord Rodger; but it is clear in any event that the Upper Tribunal at any rate had regard to both and that neither tribunal perpetrated any error of law.

Central to the case on the facts is the question of how the appellant would conduct himself if he were returned to Malaysia. It is convenient to look at the tribunal's findings which relate to this before turning to the judgments in HJ (Iraq). Immigration Judge Turquet said this, at paragraphs 33 to 36 of her determination:

"33. Having carefully considered the background evidence and the Appellant's own evidence that he knew of no one who had been persecuted in Malaysia and Mr Briddock's account of finding no cases since 2000, I am not satisfied that gay people would be subject to persecution in Malaysia. Homosexuality is not a criminal offence and the law under Section 377 that criminalised sexual acts has only been used 7 times in 70 years and 4 of these occasions were against the ex-Prime Minister, Anwar Ibrahim. As a Christian the Appellant will not be subject to Sharia Law, I accept that some reports refer to not being private but it is evidence from the information about clubs, venues, spas etc and information for gay visitors and the report that gay life was blossoming in Malaysia that gay people are able to live openly in Malaysia without fear of persecution.

34. In the event that the above finding was flawed, I have considered how this Appellant would live on return. This is an Appellant who has returned to Malaysia, having lived in in the United Kingdom for some time. He was there for 6 months in 2008–2009 and recently went back for a wedding. He has described visiting gay clubs in London and having physical contact in a sauna. Such gay venues exist in this country but he has not visited them and did not know of them and said that he did no research on them via the internet … The Appellant said in interview and confirmed in evidence that he had not told his parents about his sexuality to spare them heartache. He has said that he will only tell people he is gay if they ask. I find that it is in the nature of this Appellant to be discreet. He is someone who is sensitive to his family's feelings.

35. I find that as an unflamboyant discreet homosexual, the Appellant would be unlikely to bring himself to the attention of ordinary citizens and even less likely to attract the attention of the authorities. As stated in Paragraph 82 of HJ, 'If the Tribunal concludes that the applicant would choose to live discreetly because that was how he himself would choose to live or because of social pressure, then his application should be rejected.' Having considered the Appellant's case I conclude that the Appellant would choose to live because that was how he would choose to live. If he were to have a relationship and a partner, I do not find that the background evidence demonstrates that this would cause him to be at risk of persecution.

36. I note that the Appellant did not claim asylum, when he returned to the United Kingdom in 2009 after a six month stay in Malaysia and chose to return there in November last year. Although he stated that his actions implied that he was gay and people have always been told that he has a feminine side, he has not come to the adverse attention of the authorities and I find that his recent visit is an indication that he does not perceive himself to be at risk of persecution from the authorities. The only person he could name who had been charged was the ex-Prime Minister. He did not claim on his arrival back here in December. I find his behaviour in not claiming asylum until January this year shortly before the expiry of his visa is behaviour falling under Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and his credibility is damaged. I find his claim at this stage is an attempt to prolong his stay here and not because of a well founded fear of persecution in Malaysia."

Senior Immigration Judge Jordan's determination in the Upper Tribunal is, I have to say, very discursive. He offers copious citations of the evidence. I propose only to set out these short passages from his conclusions:

"29. On my assessment of the background material, the level of discrimination against gays in Malaysia may well be greater than in the United Kingdom but the background material does not address the impact of discrimination upon the provision of services, employment prospects, the availability of accommodation or access to health care, education, leisure pursuits or social organisations. In other words, whilst many Malay Muslims may disapprove of the appellant's lifestyle, there is no evidence that the effect will go beyond disapproval and result in concrete repercussions leading to the appellant being refused access to the services and opportunities that every person is entitled to receive.

30. The conclusion that I have reached is that the consequences that the appellant will experience on return will not result in persecution masquerading as a prosecution under Malaysian morality laws, nor will it result in the imposition of sanctions imposed by Sharia law nor is there a reasonable likelihood of individual police officers targeting the appellant as a member of the gay community in circumstances where he will suffer serious harm nor a real likelihood that vigilantism place him at similar risk."

The Senior Immigration Judge then proceeds to discuss at some length the terms of Immigration Judge Turquet's determination. I need not, with respect, take time to set out those passages.

In HJ (Iran) Lord Hope said this at paragraph 35:

35. This brings me to the test that should be adopted by the fact-finding tribunals in this country. As Lord Walker points out in para 98, this involves what is essentially an individual and fact-specific inquiry. Lord Rodger has described the approach in para 82, but I would like to set...