Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11473/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 13 November 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

mr Jiunkiat chung
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms B Asanovic, Counsel
For the Respondent: Mr N Bramble, HOPO

DETERMINATION AND REASONS
1. This is a rehearing of the appellant’s appeal against the respondent’s decision made on 12 December 2012 to refuse to grant the appellant asylum, following my decision on 23 July 2013 that the decision of the First-tier Tribunal should be set aside by reason of errors of law and be remade.
2. The appellant is a citizen of Malaysia born on 11 November 1971. He last arrived in the UK on 28 July 2012 and was granted leave to enter for six months. He claimed asylum on 14 November 2012 on the basis that he feared persecution in Malaysia on account of his homosexuality. The Secretary of State accepted that the appellant is gay but did not accept that if returned to Malaysia he would be arrested and/or persecuted by the Malaysian government and/or the police.
3. At the hearing Mr Bramble accepted that the appellant is gay. He accepted the appellant’s lifestyle although he wanted to know more about the appellant’s relationship with his family and how he socialised in the gay community in Malaysia.
4. The appellant gave oral evidence through a Cantonese interpreter. He adopted the four witness statements he had submitted in support of his appeal. The statements are dated 23 November 2012 (which appears in the respondent’s bundle at C37), 17 June 2013, 10 September 2013 and 7 October 2013.
5. In cross-examination the appellant said that his family lives in Selangor in Malaysia. Selangor is a district in Kuala Lumpur. He has always lived in the family home. He comes from a traditional family. He is the oldest son. He has one older sister, two younger brothers and two younger sisters. One younger brother is married with three children. The older sister and one younger sister are married. His mother lives on her own. From the witness statements we know that his father died in 2005. He said in oral evidence that the youngest sister, who is not married, visits her on her day off and on her holidays. This sister lives in company accommodation. His mother was born in 1949.
6. The appellant was asked if he was close to his mother and siblings. He replied that due to his homosexuality and sexual orientation he keeps to himself. He only shares holidays with his family. He has not told them that he is gay because he knows they will not accept his homosexuality. He is frightened that if he told them his mother would ask him to leave the house. The family would also be disappointed and upset. He accepted that he was 42 years old. He said that the family has always put pressure on him to get married. His mother is upset that he is not married and wonders why. Maybe she thinks that he has not found the right person yet.
7. He was referred to a statement in September 2013 in which he had said that he felt depressed and suicidal. He was asked if this was part of the pressure of not being able to come out to his family. He said it was difficult for him to be himself within the family. Malaysia is a Muslim country and does not accept gay people. He was sacked from his job. These difficulties made him feel suicidal and give up on himself. He has not attempted suicide. He has not been able to sleep when he gets emotional about his circumstances. He takes the sleeping tablets that have been prescribed by a doctor. He lives in a confused state and does not know what will happen in the future.
8. The appellant said that he is a Buddhist but is not committed to the religion.
9. I was referred to one of his witness statements in which he said that he received text messages from friends warning him not to go to certain coffee shops because the police would raid them. He said that his friends just wanted him to be careful when they sent him the text messages. He did not normally go to a coffee shop in a public place which is not specifically for gay people. If he did go it would be with Dominic, someone he knew in London and who had returned to Malaysia. He has been to a gay bar once in five years and that was soon after he went back to Malaysia. He was asked if he could live alone if his mother asked him to leave the family home. The appellant became distressed and said that he would like to live at home with his mother. In any event he did not have money or a job and would not be able to live alone.
10. In re-examination the appellant said that since he was beaten up in 1998 in a park he did not want to go there anymore or risk his life. It was soon after he went back to Malaysia in 2008 that he went to the gay bar. He also confirmed what he had said in his most recent witness statement that he went to a sauna twice and once to a gay bar.
11. In determining this appeal I have taken into account all the evidence submitted by the appellant, his oral evidence, the objective evidence and the submissions made by his Counsel and Mr Bramble.
12. I accept the following facts. The appellant is gay. He has not told his family in Malaysia that he is gay. He comes from a very traditional family and is expected as the first son to get married. He fears that if he told his family that he was gay, his mother would be very upset and throw him out of the house. They would disown him and cast him out. He feared the repercussions, not only from his family but also from the community.
13. I accept that the appellant started working in Malaysia around 1990 in a department store as a sales assistant selling men’s fashions. He worked there for eight years and made some friends at work. They could discern that they were gay. They developed a friendship and often hung out after work. They used to dress up like girls, have makeup and play beauty pageant. I also accept that in 1998, a month before he came to the UK he hung out with his friends in Dataran Merdeka Park. They walked about looking to pair up with other guys. Not long thereafter they saw about four men and started talking to them. He went with one man to another side of the park and they started kissing. Three men then came up, asked them what they were doing. These men identified themselves as policemen although they did not show their badge and it was rather dark. The policemen beat them up and took their wallets. They drove to a nearby clinic, claimed they were mugged and got treatment for their wounds. The next day when his mother and family saw him he told them he was robbed.
14. Following that incident the appellant came to the UK in October 1998 and stayed until 2001 when he returned to Malaysia. He returned to the UK in 2001 and remained until 2008. He most recently came back to the UK in July 2012. I accept that in the UK the appellant has been fully open about his sexuality and has been in relationships with other men.
15. The issue in this case is whether the appellant would be able to live an openly gay lifestyle in Malaysia without fear of persecution.
16. At paragraph 18 of the refusal letter, the respondent relied on the 2011 US State Department Human Rights Report for Malaysia which stated that Laws against sodomy and “carnal intercourse against the order of nature” exist but were rarely enforced … Religious and cultural taboos against same-sex sexual conduct were widespread…. In light of this evidence the respondent took the view that whilst laws against homosexuality exist in Malaysia, objective evidence shows that these laws are rarely enforced and, in fact, a thriving gay scene is reported in Malaysia, placing reliance on a report from the Utopia Asia website.
17. The appellant submitted an article from Aslaone News from a Singapore press Holdings Portal (C97 of the respondent’s bundle). The is a report of threats against a hardline conservative Malaysian Muslim who had apparently entered into a civil partnership in Ireland. The report went no further than threats to punch the Malaysian man and rants about how he is a traitor to the Muslim religion, the race and the nation. There was no mention in the report that if the Malaysian Muslim were ever to return to Malaysia he would be put on trial and punished for being homosexual.
18. The appellant also produced an article from the Guardian newspaper dated 6 November 2007 stating that the police in Malaysia, where sodomy is a crime, have raided a gay sex party and arrested 37 men, including a Briton. According to the report the fitness centre in northern Penang was regularly used for gay activities. Their report said homosexuality is not specified as a crime in Malaysia, that there is a law prohibiting sodomy, which is punishable by up to twenty years in prison and whipping. The report went no further than that and therefore I have no evidence whether all or any of the 37 men were put on trial and how many were punished by being sentenced to twenty years in prison and whipping.
19. Counsel relied on a report by Lynette J Chua who is an Assistant Professor of Law in the Faculty of Law, National University of Singapore. Her remit was to provide her opinion on whether the appellant, as a gay man of Malaysian citizenship with Chinese ethnicity and Buddhist religion, ran a real risk of persecution if he is returned to Malaysia. She said she understood that the test of real risk of persecution, as applied to gay men, was that set out by Lord Hope in HJ (Iran).
20. Miss Chua set out the legal framework in Malaysia and cited Section 377A of the Penal Code and also Section 377B which lays down a term of imprisonment which may extend to twenty years and whipping for whoever voluntarily commits carnal intercourse against the order of nature. I find that this confirms the contents of the article in the Guardian newspaper. Counsel when asked said that Miss Chua did not indicate in her report whether such punishment was metered out to those found guilty of sodomy. Miss Chua said that since 1998, there have been no more than ten prosecutions under Section 377B or 377D which covers a wide range of homosexual conduct, although this does not include unreported judgments or cases that do not receive media attention. She also goes on to say that the police frequently raid gay businesses such as clubs and saunas and that her research in four months explained that the customers are usually rounded up and taken to a police lockup where they are detained overnight; often times, the authorities invite state controlled media to the raids so that the customers are publically shamed in newspaper photos or television news. The police are also known to arrest and harass gay persons in public places, especially cruising ground such as the park that the appellant visited. Even if these incidents do not lead to prosecution, the police can use the Penal Code provisions as a threat.
21. I find that Miss Chua’s evidence does not show that the police are willing to use Penal code 377 or 377D to prosecute homosexuals who are engaged in homosexual activity. If the most the police do is to publically humiliate homosexuals who have been arrested by them, I find that the arrest and harassment does not reach the threshold of persecution.
22. Miss Chua said in her report that men who cross-dress, such as the appellant, are often targets of the police. The appellant’s evidence was that he was assaulted once by the police in 1998 in a park where he was hanging out with his gay friends at night. Counsel submitted that if this incident was accepted, and even if the attackers were not police officers and therefore non-state agents, it amounts to past persecution which is likely to reoccur were he to be removed to Malaysia. Counsel submitted that this evidence alone was enough to allow the appellant’s appeal.
23. I accept that the appellant was attacked in 1998. That evidence was not disputed by the respondent. The appellant did not know whether his attackers were police officers or not. I do not find that this one incident, which occurred about fifteen years ago, is sufficient to lead to a finding that it is likely to happen again on the appellant’s return to Malaysia and therefore his appeal should be allowed. It was after that attack that the appellant came to the UK and stayed for three years. He returned to Malaysia briefly when his father died in 2005 and returned to the UK and remained here until 2008. He then returned to Malaysia where he remained for four years before coming to the UK in 2012. During his periods of stay in Malaysia he said in his most recent statement that he went out three times to gay places, once to a sauna and twice to a bar. He also had two sexual encounters both of them with a friend of a friend. He would sometimes meet up with a gay friend in a coffee shop and through him meet his friends. However he was feeling really scared because of the antigay public statements of people in government. Whilst I accept his evidence about his fears, I find that his fears did not materialise. He has not been attacked again since the attack in 1998. His ability to engage with the gay scene in the intervening period does not bear out his fear of future risk.
24. The appellant’s own evidence suggests that there is an active gay scene or gay community in Malaysia. I accept that they are the targets of police arrests and humiliation but that has not prevented the gay community from living their lives. Miss Chua said in her report that the safe social spaces where the appellant could be “at” and socialise remain limited. The presence of bars and clubs do not amount to an overall gay friendly environment and no law exists to protect someone like the appellant from discrimination on the basis of sexual orientation, such as in housing and employment although she says in her footnote that she is not aware of any systematic record of discrimination on the basis of sexuality or sexual orientation. I do not find on this evidence that there is persecution of gay people. I do not find that homosexuals are prevented from openly living a gay lifestyle because there is not an overall gay friendly environment.
25. It appears from the objective evidence drawn to my attention by Mr Bramble that the government is in the process of educating children against homosexuality. Miss Chua refers to the guidelines issued by the Ministry of Education in September 2012 on how to “spot” male and female gay children with the idea of “treating” or “curing” them. The report in the appellant’s bundle is entitled “Malaysia: Gay Teens Sent to Masculinity Counselling”. It reports that boys between 13 and 17 years old who displayed effeminate mannerisms will undergo religious and motivational classes and physical guidance. The camp is meant to guide them back to the right path in life before they reach the point of no return. Another report entitled “Helping the Malaysian Government Find Gays” states that the Malaysian government is so concerned about the homosexual population’s “rampant” activities that they have sent 66 effeminate boys to be straightened out. The appellant is not a child; he is an adult man aged 42. It is not his age group that the authorities are targeting and trying to change; it is the children.
26. It appears from the appellant’s evidence that prior to the attack in 1998, he would visit a well-known cruising ground in Malaysia three or four times a year in order to try and meet men. I find that even after the attack the appellant has continued to lead an openly gay lifestyle but has limited himself as to the places he conducts his social life.
27. I find that the appellant’s fear on return to Malaysia is of the reaction of his family if he were to tell them he was gay. This fear has remained consistent throughout his statements and oral evidence. I find that he limited his gay activities because of the public humiliation he might receive from the authorities if he is arrested. The public humiliation would lead to his family finding out about his homosexuality. I base my finding on the fact that he did not tell his family the reason for the attack on him. The thought of disappointing his mother and family members and being asked to leave the family home where he has lived all his life because of his homosexuality weighs heavily on him. I find that it is this fear that has led the appellant to seek asylum in the UK.
28. In paragraph 65 of HJ and HT [2010] UKSC 31, the Supreme Court at subparagraph (vi) held that “if the tribunal concludes that the applicant would choose to live discreetly simple because that was how he himself would wish to live, or because of social pressures, e.g. not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay”.
29. I rely on the above finding in HJ and HT. In light of my finding that the appellant has toned down his gay lifestyle because of his fear of the consequences of his family finding out that he is gay, I reject the appellant’s claim that he has a well-founded fear of persecution for a Convention reason.
30. I accept that the appellant lost his job although he was unable to say whether the loss of his last job was as a result of being gay. He was in his first job for eight years. The fact that he has lost one or two jobs without particularising the reason for the loss is not enough to lead to a finding that he has been discriminated against because he looks effeminate and is gay. He can and is able to find a job were he to be removed to Malaysia.
31. The appellant submitted a report by Professor Katona. He said that the appellant does not have clinically significant depressive symptoms. He does not currently fulfil the criteria for any major mental illness although in the months prior to his leaving Malaysia in 2012 his mental state suggested that he had clinically significant depressive symptoms at that time and also that his self-esteem was very low. Professor Katona said that in his opinion if the appellant is forced to return to Malaysia this is likely to result in a return of the appellant’s suicidal thoughts, and a small but clinically significant risk that this would lead to actual self-harm. In his opinion the risk would be present in the UK once he had lost all hope of being allowed to stay, and would remain present during the removal process and once he was back in Malaysia. I find it significant that the appellant has not acted on his suicidal thoughts. He has taken the medication prescribed by the doctors but has not felt so depressed as to attempt to commit suicide. In the circumstances I am unable to support the view that there is a small but clinically significant risk that the appellant will self-harm if he is forced to return to Malaysia.
32. I find that the appellant has not established that he has a well founded fear of persecution for a Convention reason. The appellant’s appeal is dismissed.

Signed Date

Upper Tribunal Judge Eshun