D.T. v Rufugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 14 June 2017 |
| Neutral Citation | [2017] IESC 45 |
| Docket Number | [Appeal No. 16/2013] |
| Court | Supreme Court |
| Date | 14 June 2017 |
[2017] IESC 45
THE SUPREME COURT
Dunne J.
Clarke J.
Laffoy J.
Dunne J.
[Appeal No. 16/2013]
AND
Immigration and asylum – Refugee status – Abuse of process – Respondents seeking an order dismissing proceedings for abuse of process – Whether appellant was a Bhutanese national
Facts: The High Court certified a point of law based on the version of events put forward in the course of proceedings before the Refugee Applications Commissioner and the Refugee Appeals Tribunal to the effect that the appellant was a Bhutanese national and was effectively stateless. A significant conflict arose as to whether that version of events was correct or not; if it transpires that the appellant was not in fact a Bhutanese national but was instead a national of Nepal, the question of law certified by the High Court simply would not arise. An application was brought before the Supreme Court pursuant to a notice of motion dated the 15th June, 2016 on behalf of the respondents, the Minister for Justice and Law Reform and the Refugee Appeals Tribunal, seeking an order pursuant to the inherent jurisdiction of the Court dismissing the proceedings for abuse of process.
Held by Dunne J that given that there was a significant conflict of evidence between the parties in light of the information from the UK Home Office, it would not be proper to determine the point of law certified given that it was not possible to say whether the appellant is a Bhutanese national as he claimed or whether he is, in fact, a Nepalese national, as this would require the Court to determine what may be a hypothetical question.
Dunne J held that she would dismiss the appeal.
Appeal dismissed.
An application was brought before this Court pursuant to a notice of motion dated the 15th June, 2016 and returnable for the 3rd October, 2016 on behalf of the respondents herein where the respondents sought the following relief:
‘An Order pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings for abuse of process.’
The applicant/appellant (hereinafter referred to as ‘Mr. T.’) states that he was born in Bhutan in 1964 to Bhutanese parents and that he is of Nepalese extraction. He arrived in this country on the 7th April, 2010 and applied for refugee status. The Refugee Applications Commissioner (hereinafter referred to as ‘the Commissioner’) found that he was a stateless person and determined that Nepal was his country of habitual residence. A number of adverse determinations were made in relation to Mr. T.'s credibility and ultimately it was determined that Mr. T. had failed to establish a well-founded fear of persecution. Accordingly, it was recommended that he should not be declared a refugee. Mr. T. appealed that decision to the Refugee Appeals Tribunal (hereinafter referred to as ‘the Tribunal’). It determined that he was stateless and that his country of habitual residence was Nepal. It was concluded that he had given no cogent evidence to the Tribunal that he had either suffered persecution for a Convention reason in Nepal in the past or that there was a real risk that he would do so in the future were he to return there and as an alternative finding, it was also found that Mr. T. lacked personal credibility. In that context a number of issues were relied on. It is not necessary to deal with those issues here. Following the decision of the Tribunal on the 9th February, 2011, an application for leave to apply for judicial review in respect of the decision of the Tribunal was brought by Mr. T.
Judgment was delivered in respect of that application by O'Keeffe J. on the 18th July, 2012. O'Keeffe J. refused to grant judicial review of the decision of Tribunal on the basis that Mr. T. had failed to establish substantial grounds for challenging the decision. However, subsequent to the delivery of his judgment an application was made for leave to appeal pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 and an order was made by the Court on the 21st December, 2012 certifying that the decision of the Court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The point of law certified was as follows:
‘Where the executive agencies of a State arbitrarily deny a person his or her citizenship, is it correct to assess that person's claim to refugee status on the basis that the State is his or her “country of nationality' for the purposes of Article 2 of Directive 2004/83/EC and s. 2 of the Refugee Act 1996 or is it correct to regard that person as “stateless'?’
It would be helpful at this stage to set out the factual background to the case as it appeared to be when the matter was before the High Court. O'Keeffe J. in his judgment described the background as follows:
‘2. The applicant asserted that he was born in Bhutan in 1964, to Bhutanese parents and that he is of Nepalese extraction.
3. He claimed to have been involved for many years in support of the cultural rights of people of Nepalese ethnicity in Bhutan and was active in the Bhutan People's Party (“BPP'). He stated that his brother, [T.B.T], was the original founder of BPP and a leader of that movement in the district of Samchi, where the applicant resided from birth. On the 12th July, 1989, the applicant's brother was allegedly murdered by the Bhutanese authorities whereupon the applicant claimed to have become the leader of the movement in his area.
4. He asserted that on the 5th September, 1990, he organised a demonstration in Samchi Bazar, which resulted in his detention and torture in a police station. After five days, he was allegedly informed that he would be released if he signed a paper agreeing to leave Bhutan. The applicant asserted that on the 10th September, 1990, he signed the paper and was released from the Samchi police station. He then alleged that on the 14th September, 1990, following threats of further detention and torture, he and his family left their home in Bhutan.
5. The applicant stated that he resided in Nepal, at Beldangi 1 Refugee Camp, between 15th September, 1990 and 15th January, 2010 at which point he claimed that he returned to Bhutan. The applicant asserted that he did so in the belief that following UN pressure, he would be able to reclaim his family property in Bhutan but instead found himself arrested, detained and tortured until his escape on the 21st March, 2010.
6. He claimed then to have left Bhutan, first travelling to India, then on to Moscow, before entering Ireland on 7th April, 2010, whereupon he applied for refugee status.’
Following the order of the High Court certifying that an issue of exceptional public importance arose, a notice of appeal was filed on the 10th January, 2013. One of the issues arising on the appeal concerns the conclusion of both the Commissioner and the Tribunal to the effect that whilst it was accepted that Mr. T. was of Bhutanese origin, the conclusion was reached that he was stateless and that his country of ‘former habitual residence’ was Nepal. On that basis, the question of future risk of persecution was assessed by reference to his account of his time in Nepal and country of origin conditions in that state. By contrast, Mr. T. has always maintained that he was a Bhutanese national and that the action of the Bhutanese authorities in allegedly stripping him of his citizenship was an act of persecution and therefore he claimed that he should be assessed as a Bhutanese national and, accordingly, by reference to conditions in Bhutan or, alternatively, as a stateless person whose country of former habitual residence was Bhutan. These are important issues so far as the appeal is concerned. Thus, as can be seen, the question of Mr. T's nationality and his place of residence is of crucial importance in the consideration of the point of law under appeal.
On the 27th January, 2014, an issue arose which led ultimately to the motion before this Court. On that date, the United Kingdom Home Office gave information to the Minister as part of the co-operation between the British and Irish authorities in their joint administration of the Common Travel Area. It appears that the Minister for Justice and Law Reform passed on fingerprints of Mr. T. to the Home Office and a response was received from the Home Office stating that the fingerprints provided by the Minister matched the records of the Home Office and that a person with the following details had been identified on the Home Office Visa Central Reference System as follows:
‘Name: [C.R.]
Date of Birth: 12/04/1965
Nationality: Nepal
Visa Type: Multi-Visit
Validity: 02/02/2010 – 02/08/2010
Destination: United Kingdom
VAF Number: 2859936
Issuing Post: New Delhi (BHC)
Passport No: 4168375.’
It was also stated that:
‘The visa was issued on 2nd February, 2010. Previous visit visas, using the same personal details had also been issued, valid from 7th January to 7th July, 2009; and 16th July, 2009 to 16th January, 2010.’
Further details were enclosed by the Home Office to the Minister.
The information provided by the United Kingdom Home Office referred to in the preceding paragraph was exhibited in the affidavit of John Moffatt grounding the motion before this Court seeking to have the proceedings dismissed for abuse of process.
It is necessary to refer in some detail to the factual situation as set out in the affidavits of John Moffatt on behalf of the Tribunal on the one hand and Mr. T. and on his behalf on the other hand.
As has already been mentioned, issues of...
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B.D.(Bhutan and Nepal) v The Minister for Justice and Equality
...That appeal was dismissed by the Supreme Court some four and a half years later on 14th June, 2017 (see D.T. v. Refugee Appeals Tribunal [2017] IESC 45 (Unreported, Supreme Court, 14th June, 2017)). That development explains a considerable amount of the lapse of time in progressing the pres......