High Court of Ireland Decisions

Judgment Title: K. -v- Refugee Appeals Tribunal & Anor

Neutral Citation: [2010] IEHC 142


High Court Record Number: 2007 1309 JR

Date of Delivery: 10/02/2010

Court: High Court

Introduction.
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
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 8th of October 2007, and these bear recital:

“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.

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.

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.

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.

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

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.

The applicant produced, by way of supporting documentation:

(i) A Ration card from Sanischare camp in Nepal.

(ii) A document from the Refugee Co-ordination Unit (proving relationship between the applicant and his father).

(iii) A receipt from the Bhutanese Democratic Movement.

(iv) 2 tax receipts from the Bhutanese Government.

The s.13 report states (inter alia): “The UNHCR subsequently verified that all bio-data information provided by the applicant is accurate and that his father, wife, children, brother, sister-in-law, niece and nephew are present in the camp. The UNHCR also verified that they met his father, wife and sister-in-law in the camp.”

It further stated:

“As an undocumented Bhutanese national living in Nepal it could be argued that the applicant is in fact stateless. The British Immigration Appeal Tribunal found in 'S.G. (stateless Nepalese: Refugee? Removal Directions) Bhutan [2005] UKIAT 00025' "that if an asylum claimant is in truth stateless, it is important to assess his claim by reference to his country of former habitual residence, which will not necessarily be the country of which he has previously said he was a national." It is established that the applicant's case for asylum in Ireland must be based on the events recounted during his time in Nepal, the country of his habitual residence from where there is no reason to believe that he would have faced refoulement to Bhutan.”

The Appeal to the Refugee Appeals Tribunal
The applicant deals with this in paragraphs 9-12 of his affidavit, and says:

“9. I say that in preparation for my appeal papers, my counsel originally took the view that my status in Nepal was 'stateless' and counsel submitted the Form 1 appeal papers on that basis. I say that subsequently in a further consultation, counsel having had the opportunity to do further research, was of the opinion that in light of my overall circumstances that Bhutan was still my country of nationality and I say that counsel prepared additional and alternative submissions for my appeal which counsel submitted orally and in writing to the first named respondent during the course of my oral appeal on the 2nd August 2007. I beg to refer to a copy of said submissions upon which marked with the letters "TBK2" I have signed my name prior to the swearing hereof.”

The applicant’s affidavit continues:

“10. I say that the oral hearing of my appeal was heard on the 2nd August 2007 by the first named respondent Denis Linehan and that the said first named respondent upheld and affirmed the determination of ORAC by decision dated the 27th August 2007. I beg to refer to said determination upon which marked with the letters "TBK3" I have signed my name prior to the swearing hereof.

11. I say that during the course of my oral appeal I gave oral evidence that I was born in Bhutan in 1969, lived there all my life until the Bhutanese authorities expelled me in 1992. I say that I gave evidence 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. I say that I gave evidence 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 I gave evidence that on the 3rd January 1992 I was arrested following a demonstration. I say that I gave evidence 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 I gave evidence 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, everything was confiscated by the Bhutanese authorities. I say that I gave evidence that my Bhutanese citizenship was not revoked. I say that I gave evidence that on the 26th May 1992 I left Bhutan with my wife, my parents and other members of my family. I say that I gave evidence that we travelled through India and went to Nepal. I say that I gave evidence that we were given accommodation in the refugee camp at Pathri Sanischare in Nepal set up for Nepalese refugees from Bhutan.

12. I say that I also gave evidence that I began to have problems with Maoist activists in 2005 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 gave evidence 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.”

“6. ANALYSIS OF THE APPLICANT'S CLAIM

The facts have already been outlined earlier on in this decision. Basically, when this man was aged twenty three years he had to leave Bhutan. That was in 1992. He then went on to live in Nepal where he claims to have experienced difficulties with the Maoists whilst living there. It has been suggested to this Tribunal that this man may be stateless and, accordingly, his claim should be assessed insofar as his former habitual residence is concerned. It has also been suggested that this man may have a former habitual residence both in Nepal and in Bhutan.

He has given evidence to the effect that he could not return to Bhutan because, basically, all records relating to his citizenship of that country had been retained by the government.

With reference to the term 'former habitual residence', I would like to refer to the case of S.G. and the Secretary of State for the Home Department which was a case that was heard before the United Kingdom Asylum and Immigration Tribunal in 2005.

Paragraph one stated as follows:

‘The Appellant, who at one stage, claimed to be of Bhutanese nationality appeals, with permission, against the determination of an Adjudicator, Mr J W Miller, dismissing on asylum and human rights grounds his appeal against the decision of the Respondent on 22 May 2003 refusing him asylum and consequently refusing him leave to enter. We should say that the notice of decision includes also an indication that the Respondent proposes to remove the Appellant to Bhutan’.

Paragraph two of that decision states as follows:

‘The Appellant's history is as follows. He was born in Bhutan on 29 August 1980 and is said to be of Nepalese ethnic origin. It is said that his father and uncle became involved in the BPP in Bhutan, that that activity put him in some difficulties and that, as a result, the Appellant left Bhutan with his uncle and went to Nepal. That was on 3 August 1989. We have not been told a great deal about what happened in the successive eight years, but it is not said that the Appellant was ever in one of the refugee camps which have subsequently grown up to deal with the problem of ethnic Nepalese leaving Bhutan. On the contrary, the Appellant's uncle is said to have worked in a Nepalese Post Office and the Appellant, following his education in Nepal, began work as a teacher there. That was in 1997.’

That particular Appellant claims to have experienced difficulties with the authorities in Nepal which, ultimately, forced him to leave that country in November 2002 and apply for asylum in the United Kingdom.

Paragraphs 9 and 10 of the S.G. decision state as follows:

‘9. In the present case, the Adjudicator, as Mr O'Donnell points out, drew the conclusion that not only is the Appellant not a national of Bhutan, but that he is not entitled to Bhutanese nationality either. Mr O'Donnell drew our attention to the Adjudicator's findings insofar as the Appellant's own history is concerned and also to material that was before the Adjudicator and is also before us, which relates to the attitude of the Bhutanese Government to those of Nepalese ethnicity who are seen as an undesirable, albeit large, ethnic minority. The Adjudicator having concluded, as we think he must have done, that the Appellant was in truth not to be regarded as a Bhutanese national, should then have (we repeat the word without intending any criticism) obviously passed to consider what was the Appellant's country of former habitual residence.

10. On the basis of the facts before him, we do not think that he could properly have reached any conclusion only that the Appellant's country of former habitual residence was Nepal. That is the country to which the Appellant went when he was aged about nine. It is the country in which he remained for the whole of the time when he was growing up and when he was training. It is the country in which he obtained employment and is the country from which he left for the United Kingdom. Further, in the course of his statement prepared for the hearing before the Adjudicator he wrote as follows in paragraph 23; "My fear is of the police in Nepal." After expanding on that, he went on clearly as a secondary matter to say, in paragraph 24: "I cannot return to Bhutan either."’

I have been asked to distinguish the S.G. case from the present Appellant's claim on the basis of the fact that the man in the S.G. case went to Nepal when he was nine years old whereas this particular Appellant travelled to Nepal when he was aged twenty three years. I do not think that such a distinction carries enough weight to distinguish the circumstances in the S.G. case from the present Appellant's claim. This man spent approximately fourteen years living in Nepal. He said that he spent a continuous period of three years in a refugee camp and began working for a farmer after that three year period. I accept that he worked illegally and he did not receive a specific wage. However, he seem (sic) to have been satisfied with his work and the conditions of his employment and, indeed, he claims that his employer assisted him in leaving Nepal. He did not appear to experience any difficulties in Nepal on account of his working activities. I find that this man's former habitual residence was Nepal. I intend to assess his claim on the basis of his former habitual residency in that country. It has been suggested to me by counsel on behalf of the Appellant that this man may be stateless. I accept that proposition and, accordingly, I must assess his claim on the basis of his former habitual residency in Nepal.

He left Nepal because he refused to assist the Maoists in their anti-government activities. He was asked to join in their military activities in January 2006 and was told that he would be killed if he did not join them within one month. Historically, the Maoist Rebels were involved in an armed conflict with government forces and that conflict commenced in 1996.

In that regard I would like to refer to paragraph 2.2. of the Operational Guidance Note on Nepal which issued from the Home Office and is dated 23rd March 2007. That paragraph states as follows;

‘Since February 1996 the Communist Party of Nepal - CPN (Maoists) conducted a decade long insurgency (the People's War) against the Government. Initially this insurgency was limited to the remote Mid-West regions of the country, but it spread quickly to most parts of Nepal. It is estimated that over 13,000 people including Maoists, security forces and civilians, have been killed during the conflict’.

However, the situation in Nepal has now changed considerably. In November 2006 (some ten months after this Applicant left Nepal) the Maoists entered into an agreement with the government. I wish to refer to a BBC News Report dated the 8th November 2006 in which it is stated as follows:

‘Nepal's future. Nepal's Maoist's Rebels have reached a breakthrough agreement with the civilian government on ending the country's long civil war. The Government will see the rebels join a transitional government, while. their arms will be put under UN supervision. The Maoists called a cease fire after King Gyanendra ended his controversial direct rule in April and restored the Parliament. Political Parties who were then in opposition, and are now in Government, had promised to work with the Maoists as a prelude to bringing them into Government’.

Furthermore, I would like to refer to paragraph 2.4 of the Operational Guidance Note on Nepal which issued from the British Home Office in March 2007. That paragraph states as follows;

‘In May 2006, parliament voted unanimously to curtail the monarch's political powers including his control of the military and effectively rendered him a ceremonial figure. Parliament also declared a ceasefire in the 10-year conflict with Maoists insurgents and a peace agreement between the Government and the Maoists was signed on 21st November 2006. Both sides agreed a permanent ceasefire and an arms management arrangement, which will be monitored by the United Nations. The agreement also provided for elections to a Constituent Assembly by June 2007 and for the Maoists to become part of the political mainstream as a legitimate political party. In January 2007, an interim constitution was signed by the governing SPA and the former rebels and Maoists MPs took their seats in the interim parliament’.

Whilst it appears as if the elections in June 2007 were postponed, the peace agreement between the Maoists and the Government still remains intact. This man claims that he was asked to join the Maoist Rebels in their military activities in January 2006. Since that date the Maoists have entered into a peace agreement with the government and, consequently, I feel that this man's fear of being killed by the Maoists has abated to a significant degree. The armed struggle that this man was asked to join and support is no longer a major issue in Nepal. The situation in Nepal was summarised, succinctly in paragraph 3.7.10 of the UK Home Office Guidance Notes on Nepal dated March 2007. That paragraph states as follows;

‘Since 1996 there has been an increasingly violent conflict between the Nepalese authorities and the Maoists insurgents. Both the Maoists and the Nepalese authorities have been responsible for serious human rights abuses some of which have been directed against civilians. However, since the end of the King's direct rule in April 2006 the Government and the Maoist Rebels have agreed a cease fire: signed a peace agreement and an interim constitution, and Maoist MPs have entered the interim parliament. In addition, it is not unduly harsh for a claimant who fears persecution from Maoist to internally relocate to an area where Maoist forces are not in control and where they will not face problems. In the light of this and the recent AIT finding highlighted above, it is unlikely that those who fear the Maoists or the general instability in the country will qualify for a grant of asylum or humanitarian protection’.

Taking the forward looking view into account and the changed circumstances since this man left Nepal, I am of the view that he would not be persecuted if he returned to that country which is the country of his former habitual residence. Finally, I have been asked to take into account redacted decisions. I have considered those decisions but I have the following comments to make.

SUBMISSION OF PREVIOUS DECISIONS OF THE TRIBUNAL

The Applicant's legal advisers have submitted previous decisions of the Tribunal relating to other appeals. The Tribunal has considered these Decisions in the context of the current appeal. The Irish courts have made it clear on a number of occasions that the Tribunal is not bound in any way to follow previous decisions of the Tribunal concerning other Appeals (see Fasakin and Atanasov). Clearly this is a sound proposition in view of the ever changing facts and circumstances in the countries of origin concerned, and of the very individual nature of appeals in this context. As the Tribunal is frequently reminded by legal advisors, the refugee definition requires an analysis of the subjective as well as the objective circumstances in each appeal. The Tribunal has taken into account the individual facts in the instant Appeal and in addition the most up to date country of origin information relevant thereto, as it is required to do. Given the facts of this particular case and the current country of origin information referred to, the Tribunal finds that the previous decisions submitted are not of sufficient relevance to the instant appeal to warrant a conclusion that the current recommendation be overturned.

7. CONCLUSION

The Tribunal has considered all relevant documentation in connection with this appeal including the Notice of Appeal, country of origin information, the Applicant's Asylum Questionnaire and the replies given in response to questions by or on behalf of the Commissioner on the report made pursuant to section 13 of the Act.

Accordingly, pursuant to section 16(2) of the Act, I affirm the recommendation of the Refugee Applications Commissioner made in accordance with section 13 of the Act.”

The applicant has put forward a variety of legal grounds on which he desires to challenge the Tribunal member’s decision, including but not confined to, errors of law, irrationality, unreasonableness, mistake as to matters of fact , consideration of irrelevant material, findings of fact unsupported by evidence, want of fairness and breach of natural and constitutional justice. However, broadly speaking, these all represent variations on a central theme which is that the Tribunal did not engage with the applicant’s primary argument which was that he is of Bhutanese nationality and not stateless.

The Nationality Issue – The Applicant’s Case.
The applicant has drawn the Court’s attention to the terms of the Convention relating to the Status of Refugees (1951), ratified by Ireland in 1954, which sets out the definition of a refugee, and exclusions from refugee status, in the following terms:

"A. (2) As a result of events occurring before [1 January 1951 (a temporal limitation removed by a 1967 Protocol)] and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

B. ……

C. This Convention shall cease to apply to any person falling under the terms of section A if:


(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or

(2) Having lost his nationality, he has voluntarily reacquired it; or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.


D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country."

"2.-In this Act "a refugee" means a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or 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, but does not include a person who-

(a) is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance,

(b) is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country,

(c) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,

(d) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or

(e) has been guilty of acts contrary to the purposes and principles of the United Nations.”

It was submitted that Mr.Kafley is not stateless; he is Bhutanese; and therefore his application for asylum should have been assessed in the context of Bhutan, not Nepal. This was the first submission made on his behalf by his legal representative at the hearing, and the applicant says that there was ample evidence to support his claim to Bhutanese nationality. It was submitted that the RAT (and before that RAC), in failing to assess the claim in the context of Bhutan as the country of nationality flew in the face of clear evidence, and erred in law.

Counsel for the applicant submitted that this is not a case where the applicant's credibility on this issue was questioned, either by the Commissioner or the Tribunal. The applicant's parents had long settled in Bhutan; the applicant was born there in 1969; the applicant lived there for the first 23 years of his life; his family had property there, and he was engaged in farming; he had his own family; he and his father were active in the Bhutan Peoples Party; his accounts in the Questionnaire, Interview and at the hearing in this regard were consistent. He gave evidence that the Bhutanese authorities forced him to sign a document saying he would leave Bhutan, and that on their departure everything they had was confiscated; however he emphasized that his Bhutanese citizenship was not revoked. Counsel submits that, significantly, no doubt was cast on three identity documents submitted to the RAC and RAT - a Bhutanese Government receipt for rural taxes for 1987 in the Applicant's father's name, a Nepalese Certification of the Applicant as being a registered bona fide Bhutanese refugee in Sanischare camp, and a Red Cross Beneficiary Card in his father's name.

It was urged on the Court that although questions of granting and revoking nationality are largely matters for domestic law, there is an international dimension given the consequences for other countries of unilateral conferral or withholding of nationality. Thus there are limits under customary international law on the extent to which a country can revoke the nationality of its citizens. The Court was referred to a number of cases containing judicial pronouncements, both in Ireland and abroad, concerning the nature of “nationality” and “citizenship”. It is appropriate to review these.

In Liechtenstein v Guatemala (1955) ICJR 4 (the celebrated Nottebohm case) the International Court of Justice considered whether Guatemala was required to recognise the nationality which Liechtenstein had conferred on a Mr M. Nottebohm, formerly a German national, who had sought and obtained Liechtenstein citizenship. The Court said:

"The character thus recognised on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. The reason for this is that the diversity of demographic conditions has thus far made it impossible for any general agreement to be reached on the rules relating to nationality, although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State. On the other hand, a State cannot claim that the rules it has thus laid down are entitled to be recognised by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual's genuine connection with the State which assumes the defence of its citizens by means of protection as against other States.”

According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly or by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national."

“Speaking generally, nationality is the status of a person attached to a state by the tie of allegiance. It is founded on reciprocal obligations; that is, the protection of the subject by the state and the allegiance by the subject to the state. The protection of the subject operates at two levels, viz the domestic and the international. The domestic protection that is to be accorded a national of a state is usually a matter governed by the domestic laws of that state. But according to international law, including conventional international law, a person is entitled to certain "fundamental" rights. Blackstone in his "Commentaries on the Laws of England" (18th ed) (1821) described them as the right to personal security, to personal liberty and to private property: Blackstone vol 1 at 128ff. A national is entitled to have his or her "fundamental rights" protected by the municipal laws of the state of his or her territory.

One incident of this domestic protection is the right of a national to enter into and reside in the territory of the state of nationality. In Van Duyn v Home Office [1975] 1 CMLR 1 at 18 the European Court of Justice said that it was a principle of international law that "a state is precluded from refusing to its own nationals the right of entry or residence." See also Article 13(2) of the 1948 Universal Declaration of Human Rights which provides that "[e]veryone has the right to leave any country, including his own, and to return to his country" and Article 12(4) of the 1966 International Covenant on Civil and Political Rights which states that "[n]o one shall be arbitrarily deprived of the right to enter his own country".

Finally, there is the protection given to a national by his or her state in relation to other states. This is usually referred to as diplomatic protection. Dr Weis describes diplomatic protection as "a right of a state, accorded to it by customary international law, to intervene on behalf of its own nationals, if their rights are violated by another state, in order to obtain redress": Weis at 35. Thus, if a person has been injured in breach of international law, whether of a convention or a principle of customary international law, the state of nationality of that person has standing to intervene on behalf of its national. Diplomatic protection may be exercised by amicable or non-amicable means. It may be exercised informally such as by negotiation or mediation, or more formally, by international inquiry or arbitration or by litigation in courts such as the International Court of Justice.”

The Court was also referred by both sides to the judgment of Mr. Justice Murray (as he then was) in A.O. & D.L. v. Minister for Justice, Equality & Law Reform [2003] 1 IR 1, where he remarked, at p.75 (and in the context of expounding on “the notion of deportation”) that:

"It has long been a principle of international law that a State may not deport its own citizens. This is in part because it would be inimical to international order and risk creating what would in effect be a large body of stateless persons making it difficult and sometimes impossible for States to refuse entry to or deport undesirable aliens. There would be no State to which they could be returned and which would accept them.”

(a) the first named respondent failed to consider that the applicant has stated throughout his application that his nationality is Bhutanese, ORAC also acknowledge his country of origin as Bhutanese, and the oral and written submissions made at the applicant's oral appeal also claim that Bhutan is the country of origin;

(b) the first named respondent failed to consider the written and oral submissions made on behalf of the applicant at his oral appeal to the effect that the applicant was entitled to refugee status in relation to his country of origin Bhutan on the basis of his treatment there because of his ethnicity and his political opinions.

(c) despite the fact that the first named respondent's decision also cites Bhutan as the applicant’s country (of origin), suggesting that Bhutan is the country relevant to the applicant's claim, the first named respondent determines the applicant's appeal exclusively in the context of the applicant's problems in Nepal.

The Nationality Issue – The Respondent’s Case.
The respondent has submitted that the Tribunal Member was entitled to find that the applicant was a stateless person. In fact it was argued by Counsel for the applicant at various stages of the appeal that he was stateless, whether solely, or as an alternative argument. The Commissioner found, on the basis of the country of origin information before him, that the applicant was a stateless person.

The Tribunal had regard to the fact that the applicant was from Bhutan and that he asserted Bhutanese citizenship. However, while the applicant informed the Tribunal Member that his citizenship was not revoked, he also relied on the following assertions:

• that his citizenship documents were taken from him by the Bhutanese Government;

• that he was forcefully expelled from Bhutan;

• that his family could not prove residency, which was stated by him to be one of the conditions of being permitted to remain a Bhutanese citizen and remain in Bhutan.

This argument was amplified somewhat in supplemental written submissions filed by the respondent. It was submitted there that:

“The Tribunal found the applicant to be a stateless person, having considered the submissions made by the applicant and all relevant documents which were before the Tribunal. These included:

• the statement at question 29 of his questionnaire that he was forcefully expelled from Bhutan;

• at question 21 the applicant stated that new requirements of the citizenship legislation introduced in 1985 and that he was forced to leave Bhutan in 1992;

• at interview, the applicant stated that his family did not have the requisite proof of residency to comply with the citizenship laws introduced in 1985 (p 7);

• he also stated that he was ':forced to sign a paper to say we were leaving the country, that we would never go against the government and never go back to the country. All our property and belongings were seized and were distributed to the Bhutanese poor people." (p. 8) and that his documents regarding Bhutanese citizenship were snatched (p. 29 -30);

• the notice of appeal described the applicant as "stateless" and submitted inter alia ''The applicant's claim is that he is a stateless person which is apparently conceded by the RAC in that they conclude that his claim is to be considered in relation to the country of his former habitual residence.";

• access to previous decisions of the Tribunal in the following category was sought by the applicant - "Positive decisions concerning persecution on grounds of ethnicity and political opinion in Nepal, particularly re stateless persons.";

• additional submissions were submitted to the Tribunal which submitted that the applicant's claim should be assessed, as a stateless person, having regard to his former habitual residence i.e. Nepal and Bhutan, or alternatively as a national of Bhutan;

• it was submitted on behalf of the applicant at the Tribunal hearing that the applicant may be stateless, although it was also submitted that he had Bhutanese nationality.”

"87. In this context, "nationality" refers to "citizenship". The phrase "is outside the country of his nationality" relates to persons who have a nationality, as distinct from stateless persons. In the majority of cases, refugees retain the nationality of their country of origin.”

and

“89. Where, therefore, an applicant alleges fear of persecution in relation to the country of his nationality, it should be established that he does in fact possess the nationality of that country. There may, however, be uncertainty as to whether a person has a nationality. He may not know himself or he may wrongly claim to have a particular nationality or to be stateless. Where his nationality cannot be clearly established, his refugee status should be determined in a similar manner to that of a stateless person, i.e. instead of the country of his nationality, the country of his former habitual residence will have to be taken into account. (See paragraphs 101 to 105 below.)"

“I accept (as was not disputed) that the Tribunal member must make a finding of nationality before he can consider the claim of the applicant to be a refugee. It does not appear necessary that such finding be so explicitly expressed provided the country or countries of which the Tribunal Member considered the applicant to be a national are clear from the decision. It is clear from the decision of the member of the Tribunal that he accepted firstly that the applicant is a national of Bosnia Herzegovina. Unless he so concluded, there was no reason to consider the applicant's claim to have been persecuted there and presumably to continue to have a well-founded fear of persecution if she were to be returned to Bosnia Herzegovina and for that reason to be unwilling to avail of its protection.”

It was also submitted that once the Tribunal found that the applicant was not a refugee having regard to the grounds put forward regarding his place of former habitual residence it was not necessary for the Tribunal to consider whether he had a well founded fear of persecution in Bhutan.

In supplemental written submissions Counsel for the respondent contended, if the Court correctly understands the submission, that the applicant by agreeing to leave Bhutan in the circumstances in which he did, effectively waived any entitlement to make the case at a later stage that he was a Bhutanese national. In support of this Counsel argued:

“While the issue raised in the within proceedings is not that of bias, it is submitted that the principle of waiver or acquiescence applied in Corrigan v. Irish Land Commission [1997] I.R.317, 326 is applicable as it was found to be in Lennon v. Cork City Council [2006] IEHC 438. In Brennan & Ors v. Governor of Portlaoise Prison [2007] IEHC 384 O'Neill J. stated:

"It is now, I think, well established in our jurisprudence that the right to complain or the opportunity to complain about a defect, be it a Constitutional defect or legal defect, can be lost by the non-exercise of that right and the passage of time. I think the principle was probably first stated by Henchy J in the case of The State, [Byrne] v. Frawley, [1978] I.R. 326."

In M.Q. v. The Judge of the Northern Circuit Mr. Justice McKechnie held, at paragraph 51:


"He elected to contest allegations on their merits. He was perfectly entitled to so do. Having done so however I am of the view that by his conduct he must be taken as having surrendered, waived, or abandoned his constitutional rights, and his rights to natural justice which I have above identified. That one can so do is not in dispute. See the State (Nicolaou) v. An Bord Uchtàla [1966J 1.R. 567 and G. v. An Bord Uchtàla [1980 J 1. R. 32. Once an individual without other disability has full knowledge of the relevant circumstances and once that can be established or inferred from his conduct, then he will be taken to have unambiguously surrendered such rights. The same applies to natural justice. See Corrigan v. Irish Land Commission [1977] 1.R. 317 and O'Brien v. Bord na Mona [1983J 1.R. 255.”

“As a result of this separate ground I would conclude that he cannot attempt to re-establish a position which was open to him in January 1999 but which, as of now, has been superseded by a process to which he willingly submitted."

This was followed by Mr. Justice MacMenamin in CC v. Early [2006] IEHC 147.

In his affidavit sworn herein, the applicant states that he was forced to leave Bhutan by the Bhutanese Government. It is a fundamental characteristic or benefit of nationality that a person may not be required to leave their country of nationality: A.O. & D.L. v. Minister for Justice, Equality & Law Reform [2003] I IR 1, Lay Jong Tji v. Minister for Immigration and Ethnic Affairs [1998] FCA 1380 and Van Duyn v. Home Office [1975] 1 CMLR 1.

The finding of the Tribunal that the applicant was stateless was neither based on an error of fact, nor does that finding amount to a fundamental error of law.”

Counsel for the respondents further submitted by way of dealing with the allegation that there was an inadequate consideration of the evidence, and a failure to engage with the applicant’s primary case, that there is no onus on the Tribunal Member to set out every detail of an applicant's experiences in the decision. It does not follow that because the minutiae of the claim were not set out that this means that they were not considered by the Tribunal Member. The Tribunal Member specifically stated that he considered all relevant documents and acknowledged that the applicant was entitled to advance additional grounds of appeal at the hearing. It was also stated in the decision dated 30th August 2007 that the Tribunal Member had regard to all relevant matters including the evidence given, and submissions made, at the hearing.

The Court was referred to G.K. v. The Minister for Justice, Equality & Law Reform [2002] 2 IR 418 where Hardiman J. stated that:

"A person claiming that a decision making authority has, contrary to its express statement, ignored representations which it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case." (p. 426/7)

Decision
If the Court was sure that the Tribunal had fully appreciated and engaged with the fact that the applicant’s primary case was that he is of Bhutanese nationality, it would uphold the Tribunal’s decision as valid without hesitation, regardless of the fact that the decision does not contain any express statement to that effect, no express statement to the effect that that argument was being rejected in favour of a finding of statelessness, and no analysis of the evidence leading to that conclusion. The Court would do so on the basis of the proposition quoted above from the judgment of Hardiman J in the G.K. case, which has been applied in the High Court in all of the cases mentioned by the respondent and in innumerable other cases. However, notwithstanding the Tribunal’s statement that it took all of the evidence and the applicant’s submissions into account, the Court is not so satisfied and is prepared to infer the contrary on the basis of the evidence contained in the affidavits and exhibits grounding this application. In saying this the Court wishes to make it clear that it does not wish to attribute, either expressly or by implication, any culpable default on the part of the Tribunal member. The concern which the Court has, and which it believes is supported by the evidence, is that there may have been a genuine misunderstanding on the part of the Tribunal as to what in fact the applicant’s primary case was. In the Court’s view there are strong grounds, deriving most particularly from three circumstances, for inferring an erroneous belief on the part of the Tribunal member that the applicant was conceding statelessness..

The first circumstance is that following a rejection of the Bhutanese nationality argument by the RAC in favour of statelessness, the appeal to the RAT was initiated by a Notice of Appeal describing the applicant as “stateless”, thereby creating the impression that nationality was no longer an issue.

The second is the fact that although the additional submissions that were later filed submitted that the applicant is a Bhutanese national, and argued in the alternative that he may be stateless, the submissions were not well crafted in presentational terms and were confusing in their layout with result that it was somewhat unclear as to which argument was the primary argument, and which was the alternative argument. This lack of clarity, and the presentational difficulties alluded to, seems to have spilled over into the oral arguments, hence one of the arguments advanced by the respondents viz, that “it was submitted on behalf of the applicant at the Tribunal hearing that the applicant may be stateless, although it was also submitted that he had Bhutanese nationality.” In fact, it makes no logical sense to advance Bhutanese nationality as an alternative to a primary argument of statelessness, but there is no evidence, and the Court has no confidence, that the Tribunal concluded this following a critical analysis of what was being advanced.

The third circumstance is that while the introduction to the decision document, setting out the applicant’s particulars, contains the detail “Nationality: Bhutanese”, and there is a reference in the recital of the evidence to the fact that:

“He said, in cross examination, that he, together with his father were citizens of Bhutan. However, all records relating to that status had been retained by the Bhutanese Government”

“There was a possibility that this applicant may be stateless. It was suggested that the applicant had a dual residence [that] would apply to either Bhutan or Nepal.”

“It has been suggested to this Tribunal that this man may be stateless and, accordingly, his claim should be assessed insofar as his former habitual residence is concerned. It has also been suggested that this man may have a former habitual residence both in Nepal and in Bhutan.”

All of this suggests that the Tribunal believed, erroneously, that at the end of the day the applicant’s status was not really in dispute, and that the applicant was accepting that his claim should be considered solely on the basis that he was a stateless person.

I have carefully considered the decision in Matijevic v. Minister for Justice, Equality & Law Reform, The Refugee Appeals Tribunal and the Refugee Applications Commissioner which is relied upon by the respondent. This is put forward as authority for the proposition that a finding with respect to a nationality claim does not need to be explicitly expressed in the Tribunal’s decision. However, I am not sure that Ms Justice Finlay Geoghegan intended to enunciate a principle of general application in that regard. Matijevic may be distinguished from the present case in as much as the Tribunal member there was concerned with a dual nationality situation and not with a situation of alleged nationality versus statelessness. In this Court’s view the statement of principle was specific to the dual nationality context. That this is so becomes clear when regard is had to the proviso added by Ms Justice Finlay Geoghegan. The proviso was in the following terms:

“ It does not appear necessary that such finding be so explicitly expressed provided the country or countries of which the Tribunal Member considered the applicant to be a national are clear from the decision” (this Court’s emphasis)

As regards Article 89 of the UNHCR Guidelines the Court cannot gainsay that this is the recommended approach to the assessment of a claim to specific nationality, and if it was clear that the Tribunal’s decision in this case was the outcome of such an assessment then it would be unassailable. However, as a matter of common sense it can only have relevance in circumstances where such a claim is in fact being assessed. Once again, the difficulty that this Court has is that it is by no means clear that the Tribunal felt it necessary to engage in such an assessment. It would have done so if it recognized and engaged with the fact that the applicant was pursuing a claim of specific nationality. This Court’s significant doubts in that regard remain unassuaged.

The Court notes the respondent’s reliance on the principle that it is a fundamental characteristic or benefit of nationality that a person may not be required to leave their country of nationality: A.O. & D.L. v. Minister for Justice, Equality & Law Reform [2003] I IR 1, Lay Jong Tji v. Minister for Immigration and Ethnic Affairs [1998] FCA 1380 and Van Duyn v. Home Office [1975] 1 CMLR 1.While this is true the principle should perhaps be recast in terms that it is a fundamental characteristic or benefit of nationality that a person may not be lawfully required to leave their country of nationality. However, some governments behave unlawfully and where they do it will frequently amount to State persecution.

It is worth remarking that the facts of the applicant’s case, if accepted, would arguably amount to a breach of this principle of international law by Bhutan. The applicant’s contention may be placed in a certain context on the basis of what is known about Bhutan from available country of origin information. According to the US State Department Report on Bhutan 2005, quoted by the Refugee Application’s Commissioner in the s.13 report:

“During the mid-and late-1980s, citizenship became a highly contentious matter in the country. Citizenship requirements resulted in the denaturalization of many ethnic Nepalese residents. Those who lost citizenship under the 1985 law were permitted to apply for naturalization only if they were able to prove 15years of residence prior to 1985. Those who could not meet the new citizenship requirements were deemed to be illegal immigrants. In addition citizens who voluntarily emigrated without government approval. lost their citizenship. Beginning in 1988 the government expelled large numbers of ethnic Nepalese under the new citizenship law.”

However, as this Court’s function is solely to review the legality and fairness of the decision of the Refugee Appeals Tribunal, the Court expresses no view on the credibility or reliability of the applicant’s claim and is not to be taken as making any finding in that regard. It is sufficient to note that, on the basis of the evidence, this was a case that it was certainly open to the applicant to make.

The Court is not impressed with the arguments advanced by the respondent based upon waiver and acquiescence, and has no confidence that the principles relied upon have any application to a determination by the Refugee Appeals Tribunal of a claim for refugee status or the determination of the issue as to whether an applicant has a specific nationality or is stateless.

In all the circumstances of the case the Court is satisfied that the applicant has demonstrated that he has substantial grounds for seeking to challenge the decision of the Refugee Appeals Tribunal and the Court is disposed to grant him leave to do so on the grounds that the Tribunal failed to engage with the applicant’s primary argument which was that he is of Bhutanese nationality and not stateless. I will discuss with Counsel the precise form of the Order.