Upper Tribunal (Immigration and asylum chamber), 2022-02-03, PA/07531/2018
| Jurisdiction | UK Non-devolved |
| Date | 03 February 2022 |
| Published date | 18 February 2022 |
| Hearing Date | 10 December 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/07531/2018 |
Appeal Number: PA/07531/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07531/2018
THE IMMIGRATION ACTS
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Heard at the Royal Courts Justice, Belfast |
Decision & Reasons Promulgated |
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On 10 December 2021 |
On 03 February 2022 |
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Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
TSW
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr McTaggart, instructed by Worthingtons, Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals against a decision of the Secretary of State made on 11 June 2018 to refuse his application for leave to remain on asylum and human rights grounds. His appeal against that decision was dismissed by First-tier Tribunal Judge S T Fox for the reasons set out in his decision promulgated on 11 October 2019. Permission to appeal against that decision was granted but, owing to the intervening lockdown due to COVID, directions were issued to the parties seeking their submissions on error of law. Subsequent to those directions the parties agreed that Judge Fox’s decision should be set aside for error of law to which the Vice President of the Tribunal agreed for the reasons set out in his decision of 4 June 2002, a copy of which is attached. It was not, however, possible to list the appeal which required a face-to-face hearing until December 2021. In the interim, it was proposed by the appellant’s representatives that this should be a country guidance case but a decision was taken that this would not be appropriate.
The Appellant’s Case
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The appellant is a gay Malaysian man of Chinese ethnicity who fears persecution on return to Malaysia on account of his sexuality. He is also in a relationship with a British citizen and that it would be a breach of his article 8 rights to require him to leave the United Kingdom as he and his partner could not live together in Malaysia as there would be insurmountable obstacles as he would not be able to do so lawfully and because there would be serious difficulties in them living together openly.
The Respondent’s Case
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The respondent accepts that the appellant is a gay man but does not accept that the situation he would face on return to Malaysia amounts to persecution. Similarly, it is not accepted that requiring him to go there would be a breach of his and his partner’s Article 8 rights.
The Hearing
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I heard evidence from the appellant as well as submissions from both representatives. In addition, I had before me a consolidated bundle prepared by the appellant’s solicitors and a skeleton argument from Mr McTaggart.
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The appellant’s partner did not attend to give evidence.
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The appellant gave evidence in Cantonese with the assistance of a court interpreter. He adopted his witness statement, explaining that his partner had had an argument on Wednesday night (that is two days ago). He was not happy about the court proceedings taking too long, did not want to go to court and had left the house. He had tried to contact him but he had not replied, he was still waiting to hear from him that morning but he had not appeared. He confirmed that the house that they both lived in was owned outright by his partner and that he had no idea when he might come back.
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In cross-examination the appellant said he had tried to contact his partner and he was sure he would return at some point as the house was his. He had asked friends where his partner was but they had not told him and perhaps they had not wanted to tell him. He said that he did have some friends who could confirm the nature of his relationship with his partner but had not asked them to do so.
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The appellant said that he was not sure if he had a religion and that if it was it was probably Buddhism. He confirmed he had been brought up on Sarawak, that the area was ethnically diverse but more Malaysian than Chinese. He said he was not aware of the laws applying to Muslim Malays and Chinese, nor had he been penalised for doing anything that was anti-Muslim.
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He said he had tried to talk to his mother in August that year as he was trying to explain to her about his relationship with his partner. He had tried to call but she did not pick up. He said she had suspected he was gay but did not accept this, nor had she asked him about it.
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The appellant said that he knew some lesbians when he was growing up but not gay men. They had not been open about their sexuality, it was only after time she found out. He had told them that he was gay and when some friends found out they distanced themselves from him.
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The appellant said he had not had any gay partners in Malaysia and although there was somebody he had fancied, he was straight.
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The appellant said he had been to Kuala Lumpur and although he had heard about the gay scene there and had tried to find out about it, he could not find it. He says although he had travelled to Singapore he had not gone to any gay clubs there as he had not had time, his reason for travelling being just to deliver things and then leave straightaway. He said that he does go to gay clubs in the United Kingdom and he also goes to straight pubs.
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He said that he and his partner had discussed getting married but that the partner’s family disapproved as he was the only man in the family and that, especially for people who are Chinese, they would not accept a gay son as they need to have sons. He said his partner’s family were based partly in the UK and partly in Hong Kong. He confirmed that they were constrained by his cultural norms to prevent them marrying, these constraints including the inability to marry.
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He said that he did not hide about his relationship with his partner in the Chinese community but that people would know. He said that was because they are together all the time which is why people would know they are in a relationship. Whether they held hands on the street and they did openly display affection depended on the circumstances such as when they felt comfortable to do so in, for example, a gay bar but not always in someone’s house unless they knew that he and his partner were in a relationship, but if they did not know the people so well then they would not openly display affection to each other. He said that he would not openly display affection in non-gay bars, he was respectful to other people who might not accept it but even in a normal relationship you do not show so much in a public place.
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The appellant said that he and his partner live alone apart from their two dogs and that it was uncommon for two men to live together as friends in Malaysia. He was not sure what the situation would be if, for example, it was university friends in a large house.
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The appellant said that he had not been subjected to any abuse by the police in Malaysia due to his sexuality but he knew that it would happen and so he avoided trouble.
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The appellant said that he had never had a heterosexual relationship but had brought girls home to introduce to his mother as she was a very traditional woman who did not accept gay people and really rejected them. He knew that as he had asked hypothetically when he was about 20 what she would do if he were gay and she said he would have to leave and not come back. He said that she knew he and his partner were good friends but had not prior to August known the truth of the relationship.
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The appellant confirmed he had not been back to Malaysia since 2007 and that he would like to go back but it would be OK if he did not tell people he was gay. He said he would not have to tell people and would just want to visit his mother and come back.
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In re-examination the appellant said that he would fear abuse by the police if living in Malaysia now as there is a lot of discrimination against gay people.
Submissions
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Ms Cunha submitted, relying on YD (Algeria) [2020] EWCA Civ 1683 that the appellant might face discrimination but that this did not constitute persecution. She submitted although there were penalties exacted on gay men in Malaysia, these were rare and the information suggested it is carried out against Muslims by the Sharia police. She accepted that the Chinese minority was conservative but there was no equivalent in enforcing those views to the Sharia police. She submitted that the appellant was quite willing to restrict himself in different situations shown by his acceptance that he would demonstrate emotion in gay pubs but not otherwise, that this may be the results of his own cultural background. This was not because he was afraid of persecution but it was part of who he is and how he expresses his sexuality.
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Ms Cunha submitted that the appellant would not be at risk in Kuala Lumpur as it was not part of who he is to be open about his sexuality and thus he would not be prevented from behaving as he would as a result of the punitive law.
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