BDR v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 25 May 2016
• Neutral Citation: [2016] IEHC 274
• Docket Number: [2015 No. 185 J.R.]
• Court: High Court
• Date: 25 May 2016

[2016] IEHC 274

THE HIGH COURT

Faherty J.

[2015 No. 185 J.R.]

BETWEEN

B. D. R.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act, 1996 – Appeal against the decision of Refugee Appeals Tribunal – Country of habitual residence – Whether stateless person could claim the refugee status – Convention relating to the Status of Refugees 1951 – Reg. 5 (2) of the European Communities (Eligibility for Protection) Regulations 2006

Facts: The applicant sought an order of certiorari against the decision of the first named respondent on a remitted appeal that the applicant not to be declared a refugee. The applicant contended that since he had suffered persecution in the country of origin on the grounds of different ethnicity of his parents and denied citizenship, of which he was habitually resident, he went to a second country and habitually resided therein for a considerable period of time, from where he came to Ireland to seek asylum. The applicant contended that the finding of the first named respondent that since the applicant was unable to return to the first country of habitual residence, there could not be any well-founded fear of persecution was a manifest error of law. The respondent contended that since the applicant was stateless and had the option of residing in the second country of habitual residence, it would not be appropriate to conduct an inquiry on Convention ground for the existence of a well-founded fear of persecution as the applicant had no legal right to return to the first country of habitual residence.

Ms. Justice Faherty granted an order of certiorari to the applicant and remanded the matter for fresh consideration before a different member of the first named respondent. The Court held that the first named respondent had adopted an erroneous approach which failed to satisfy the two limbs of test laid down in a decision of the Canadian Federal Court of Appeal in Thabet v Canada (Minister of Citizenship and Immigration) [1998] 4 F.C. 21 that a stateless applicant claiming asylum in a third country had to establish a well-founded fear of persecution in one country of habitual residence and inability to offer protection by the second country of habitual residence. The Court found that since the first named respondent had arrived at a finding that the inability of the applicant to return to the former place of habitual return would not cause it to embark an inquiry in relation to fear of persecution, the applicant was denied an opportunity to prove his past persecution. The Court observed that since there were no express findings by the first named respondent that the second country of habitual residence was willing to offer national protection to the applicant, the finding in that regard was unsustainable. The Court found that the first named respondent had acted on a wrong premise that the applicant needed to claim fear of persecution in the second country of habitual residence in the absence of such proof pertaining to the first country of habitual residence, which was never the case as held in the Thabet case.

JUDGMENT of Ms. Justice Faherty delivered on the 25th day of May, 2016

1 The applicant seeks judicial review by way of an order of certiorari of the decision of the first named respondent which affirmed the Refugee Appeals Commissioner's recommendation not to declare him a refugee.

Background

2 The applicant arrived in this State on 9th March, 2007. He sought asylum on 16th March, 2007. In support of his claim he set out as follows: He was born on 5 January, 1972 in Bhutan to parents of Nepalese ethnicity. Because of his ethnic background he was denied citizenship of Bhutan. He states that he was forced to flee Bhutan in 1990 when he was around 18 years of age after his family home was set on fire. His parents were killed in the blaze and he himself suffered burn injuries. He states that he fled to India where he then resided. The applicant met his wife in India in and around 1995 and they had two children. His wife was Nepalese. He claims that his wife left him in and around 2002 and returned to Nepal with the children of the marriage. The applicant did not want to remain in India thereafter as he was tired of living his life with no prospect of being regularised in India. He subsequently arranged with a trafficker to get him out of India.

3 The applicant underwent a s.11 interview on 25th June, 2007. His application for asylum was refused at first instance by the Refugee Applications Commissioner by decision notified on 22nd August, 2007 and thereafter on appeal by decision of the Refugee Appeals Tribunal dated 30th June, 2009. The decision was quashed by the High Court by Judgment of 4th July, 2013 and the applicant's appeal was remitted for de novo consideration before a different member of the Tribunal.

4 At the hearing of the remitted appeal on 11th November, 2014 the Tribunal requested written legal submissions on the issue of the correct approach to the determination of a refugee application from a stateless person with more than one country of former habitual residence. Written legal submissions were duly filed on behalf of the applicant. By decision dated 24th February, 2015, as notified to the applicant by letter of 24th February, 2015, the Tribunal refused the applicant's appeal.

5 The salient findings were as follows:

(i) On the balance of probabilities it was accepted that the applicant is stateless.

(ii) The Tribunal found an analysis of credibility unnecessary, stating ‘for reasons explained, it is only in circumstances where I find that the Appellant is in fact able to return to his country of former habitual residence that I must consider whether he is at risk of persecution for a Convention reason there.’

(iii) Under the heading ‘Analysis of well found fear’, the Tribunal next proceeded to analyse whether the applicant is someone ‘who, not having a nationality and being outside the country of his or her former habitual residence, is unable or owing to such fear, is unwilling to return to it’. The Tribunal was satisfied, consistent with country of origin information, that the applicant was not entitled or able to return to Bhutan.

(iv) As the applicant's circumstances indicated more than one country of habitual residence (Bhutan and India) the Tribunal considered that the applicable analysis in such circumstances was as set out by the New Zealand Refugee Appeal Authority in Refugee Appeal No. 72635/01 which in turn considered a decision of the Canadian Federal Court of Appeal – Thabet v. Canada (Minister of Citizenship and Immigration) [1998] 4 F.C.21.

(v) The Tribunal then quoted at length from the New Zealand Decision Refugee Appeal No. 72635/01 and laterally quoted six principles identified by the New Zealand Refugee Appeal Authority:

‘[152] First, statelessness per se does not give rise to a claim to refugee status. The Refugee Convention distinguishes sharply between stateless persons and refugees.

[153] Second, before a stateless person can be recognised as a refugee, that person must establish that owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion he or she is outside the country of his or her former habitual residence and is unable or, owing to such fear, is unwilling to return to it.

[154] Third, ‘habitual residence’ does not mean domicile, but merely residence of some standing or duration. That is, the claimant must show that he or she has in fact taken up residence and lived in the country for a period which showed that the residence had become, and was likely to continue to be, habitual. The requisite period of residence is not fixed and the question whether habitual residence had been established is a question of fact to be determined on all the circumstances of each case, but the individual should be able to show that he or she has made it his or her abode or the centre of his or her interests.

[155] Fourth, where a stateless person has habitually resided in more than one country, in order to be found to be a Convention refugee, such person must show that he or she has a well-founded fear of being persecuted for a Convention reason in at least one country of former habitual residence, and that he or she is unable or, owing to such fear, is unwilling to return to each of his or her other countries of former habitual residence. In short, the well-founded fear of being persecuted for a Convention reason must be established in relation to each and every country of former habitual residence before a State party to the Convention has obligations to the stateless person.

[156] Fifth, the protection afforded by Article 33(1) of the Refugee Convention is protection from the act of expulsion or return, whether that act is ‘legal’ under the domestic law of either the sending or the receiving State. The issue of return to a country of former habitual residence is therefore an issue of whether return is possible as a matter of fact, not as a matter of law. Article 33 prohibits return ‘in any manner whatsoever’, not in any legal manner whatsoever.

[157] Sixth, if a stateless person cannot, as a matter of fact, return or be returned to a country of former habitual residence in relation to which a fear of being persecuted is claimed to exist, the claim to refugee status must fail as the fear is not a well-founded fear and past persecution alone is insufficient to establish a claim to refugee status.’

The Tribunal Member duly found:

‘that the Appellant cannot as a matter of fact return to Bhutan (where he has a fear of being persecuted on grounds of his race) as he will be refused admission. The consequence of this is however...