K (TB) v Denis Linehan acting as Refugee Appeals Tribunal

JurisdictionIreland
JudgeMr Justice John Edwards
Judgment Date10 February 2010
Neutral Citation[2010] IEHC 142
Judgment citation (vLex)[2010] 2 JIC 1001
CourtHigh Court
Date10 February 2010

[2010] IEHC 142

THE HIGH COURT

Record No. 1309JR/2007
K (T B) v Refugee Appeals Tribunal (Linehan) & Min for Justice
JUDICIAL REVIEW
BETWEEN/
T.B.K.
APPLICANT

AND

DENIS LINEHAN ACTING AS THE REFUGEE APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S16(2)

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951

REFUGEE ACT 1996 S2

LIECHTENSTEIN v GUATEMALA 1955 ICJR 4

LAY KON TJI v MIN FOR IMMIGRATION & ETHNIC AFFAIRS UNREP FINKELSTEIN 30.10.1998 1998 FCA 1380

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 87

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 89

MATIJEVIC v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 4.6.2003 2003/34/8227

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP FEENEY 18.1.2007 2006/6/977 2007 IEHC 2

S (AW) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP DUNNE 12.6.2007 2007/54/11567 2007 IEHC 276

G (T) v REFUGEE APPEALS TRIBUNAL (MCGARRY) & ORS 7.10.2007 2007/25/5206 2007 IEHC 377

J (MT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 17.4.2008 2008/30/6563 2008 IEHC 102

VAN DUYN v HOME OFFICE 1975 1 CMLR 1 1975 CH 358 1975 2 WLR 760 1975 3 AER 190 1974 ECR 1337

IMMIGRATION

Asylum

Fear of persecution - Country of nationality - Former habitual residence-Whether applicant stateless - Whether refugee status assessed in context of country of origin being country of nationality - Whether possible to have more than one former country of habitual residence - Whether Tribunal erred in assessing applicant as stateless - Liechtenstein v Guatemala (1955) ICJR 4; Lay Jong Tji v Minister for Immigration and Ethnic Affairs [1998] FCA 1380; O(A) & L(D) v Minister for Justice, Equality and Law Reform [2003] 1 IR 1; Corrigan v Irish Land Commission [1997] IR 317; Lennon v Cork City Council [2006] IEHC 438; Brennan v Governor of Portlaoise Prison [2007] IEHC 384; Q(M) v Judge of the Northern Circuit (Unreported, High Court, McKechnie J, 14th November, 2003); C(C) v Early [2006] IEHC 147; Van Duyn v Home Office [1975] 1 CMLR 1; K(G) v Minister for Justice, Equality and Law Reform [2002] 2 IR 418; Banzuzi v Minister for Justice, Equality and Law Reform [2007] IEHC 2; S(AW) v Refugee Appeals Tribunal [2007] IEHC 377 and J(MT) v Refugee Appeals Tribunal [2008] IEHC 102 considered - Matijevic v Minister for Justice, Equality and Law Reform (Unrep, HC, Finlay-Geoghegan J, 4/6/2003) distinguished - Refugee Act 1996 (No 17), s 2 - Convention relating to the Status of Refugees 1951 - Leave granted (2007/1309JR - Edwards J - 10/2/2010) [2010] IEHC 142

K(TB) v Refugee Appeals Tribunal

Facts: The applicant sought certiorari of a decision of the respondent refusing him refugee status. The applicant averred that he was a Bhutanese National of Nepalese ethnic origin and had claimed asylum in Ireland in 2006. He had provided documentation to support his assertion that he was of Bhutanese nationality. The Refugee Appeals Commissioner had concluded that an undocumented Bhutanese national living in Nepal could be deemed stateless. The applicant sought judicial review of the decision of the respondent on the basis of a breach of fair procedures, contending that the Tribunal had not engaged with the applicant's primary argument that he was of Bhutanese nationality and not stateless.

Held by Edwards J. That the Court was satisfied that the applicant had demonstrated that he had substantial grounds for seeking to challenge the decision of the respondent and the Court would grant leave on the ground that the Tribunal failed to engage with the primary argument of the applicant which was that he was of Bhutanese nationality and not stateless.

Reporter: E.F.

1

JUDGMENT of Mr Justice John Edwards delivered on the 10th day of February, 2010.

Introduction.
2

This is an application for leave to apply for an Order of Certiorari and other reliefs by way of judicial review, primarily for the purpose of quashing a decision of the Refugee Appeals Tribunal rendered on the 27th day of August 2007 and in which the Tribunal Member affirmed the earlier recommendation of the Refugee Applications Commissioner made in accordance with s.13 of the Refugee Act, 1996 that the applicant should not be declared a refugee.

Background to the case
3

The background to the case is eloquently set out in paragraphs 2 - 6, inclusive, of a twenty four paragraph grounding affidavit sworn by the applicant on the 8 th of October 2007, and these bear recital:

4

2 " 2. I am a Bhutanese National of Nepalese ethnic origin born on the 8th April 1969, I am a married man and the father of 3 children. I say that my wife and children and other members of my family reside in a refugee camp in Nepal. I say that I am residing here in Ireland since I claimed asylum here in 2006. I say that I was born in Bhutan, and that my family lived in Bhutan for many generations, that our family owned land, farmed and lived peacefully in Bhutan for many years. I say that I was educated in Bhutan, and grew up there. I say that I worked with my father on the family farm and traded produce, paid taxes, and in Bhutan (sic) until I was 23 years of age.

5

3. I say that Bhutanese people of Nepali ethnic origin were discriminated against by the Bhutanese authorities since the 1950s, but in particular in 1985, the Bhutanese authorities have changed some of the citizenship and nationality laws in order to downgrade or demote the rights and status of people of Nepalese ethnicity living in Bhutan.

6

4. I say that in 1990 my father and I both joined the Bhutanese Peoples Party and that I attended meetings and demonstrations in support of the rights of people of Nepalese ethnicity. I say that on the 3rd January 1992 I was arrested following a demonstration. I say that I was subsequently detained in prison by the Bhutanese authorities, beaten, tortured, and prevented from contacting or getting any legal help from anyone. I say that I was not charged with any criminal offence. I say that Bhutanese authorities forced me to sign a document saying that I would leave Bhutan before they released me from detention on the 20th May 1992. I say that all our property - our land, house, the Bhutanese authorities confiscated everything. However, I also say that my Bhutanese citizenship was not revoked. I say that on the 26th May 1992 I left Bhutan with my wife, my parents and other members of my family. I say that we travelled through India and went to Nepal. I say that we were given accommodation in the refugee camp at Pathri Sanischare in Nepal set up for Nepalese refugees from Bhutan.

7

5. I say that my family and I remained living in the refugee camp at Pathri Sanischare in Nepal since 1992. I say that we were provided with basic accommodation and rations. I say that the UNHCR authorities have been negotiating with the Bhutanese authorities for many years and that there is yet no resolution. I say that in Nepal my status is that of a refugee. I say that I have no right to work, or to reside anywhere outside the camp. I say that I have no right to move to another part of Nepal. I say that I am not supposed to leave the refugee camp without the prior permission of the Nepalese authorities. However, I say that contrary to the regulation, I have been working illegally for a Nepalese landowner since 1995. I say that I did not receive any remuneration for this work. I say that my boss occasionally gave me rations and food to take back to my family in the refugee camp. I say that because of this unofficial and illegal employment, I was unable to live with my wife and children, and could only visit them every few weeks, and had to leave my family and return to my boss's house after a few days for my employment.

8

6. I say that I began to have problems with Maoists activists in 2006 when they first contacted me and asked me to become involved in their military struggle for power in Nepal. I say that over the following months, the pressure from the Maoists became more urgent and eventually developed into serious threats. I say that the Maoists wanted me their army (sic), and in addition wanted me to return to Bhutan and work under cover for them in fomenting agitation and political strife in Bhutan against the Bhutanese authorities. I say that I was completely unwilling to participate in any such activities on behalf of the Maoists either in Nepal or in Bhutan. I say that I was too afraid to openly refuse their requests. I say that finally they threatened that if I did not join them that I would be killed. I say that I fled Nepal to India with the help of my boss and travelled to Ireland and sought asylum in the State on the 21st June 2006."

The original basis of the claim for asylum
9

The applicant does not speak English and was assisted by an interpreter in completing the paperwork and at interview.

10

In the answers furnished to the ASY 1 questionnaire the applicant unequivocally asserts (a) that he is of Bhutanese nationality; (b) that on 02/12/1992 he claimed refugee status in Nepal; (c) that as regards the outcome of that application "They haven't decided yet. The negotiations failed to resolve the problem"; and (d) that he fears persecution on a variety of grounds including race, religion, nationality and political opinion. It was not expressly stated whether the claimed fear relates to his possible refoulement to Bhutan or Nepal, or both. It has since been ascertained that it is both.

11

The applicant produced, by way of supporting documentation:

12

(i) A Ration card from...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT