High Court grants leave to challenge Refugee Appeals Tribunal decision for failing to address nationality claim.

Neutral Citation Number: [2010] IEHC 142

THE HIGH COURT

JUDICIAL REVIEW

2007 1309 JR

BETWEEN/

T.B.K.

APPLICANT

AND

DENIS LINEHAN ACTING AS THE REFUGEE APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

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

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 original basis of the claim for asylum

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.

In the s.11 interview, the applicant again asserted that he was Bhutanese and his answers, though more detailed, provide information

consistent with, although the respondents would argue by no means establishing, the brief assertions made in answer to the earlier

questionnaire.

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.”

Approaching the matter on the basis that the applicant was stateless and that his former country of habitual residence was Nepal,

the Refugee Applications Commissioner went on to hold that the applicant had failed to establish a well founded fear of persecution.

The Commissioner so held primarily on the basis of what was known about Nepal from up to date country of origin information, and in

particular the unilateral cease-fire by the Maoists in April 2006, and the peace talks between the Maoists and the government in May

2007, leading to the cessation of conflict between the Maoists and the government, a subsequent dissolution of parliament and the

formation of a new interim government that included the Maoists. A S.11B consideration was also taken into account, viz., the

applicant’s failure to provide a reasonable explanation for not seeking asylum in Germany.

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 Court has considered the additional submissions document exhibited marked TBK2. Unfortunately, it does not represent a

masterpiece of drafting and it is confusing in the manner in which it is laid out. The Court had to read the document several times in

order to be clear as to what primary case was being advanced on behalf of the applicant, and what other case or cases were being

made, either on an alternative or on a subsidiary basis. Having scrutinised the document carefully the Court is satisfied that the

primary case made in this document is that the applicant is a Bhutanese national. However, it is argued in the alternative that if the

applicant is to be regarded as “stateless” then both Nepal and Bhutan can be considered as countries in which applicant was formerly

habitually resident. It was submitted that in the circumstances, the Tribunal was obliged to consider whether the applicant had a well

founded fear of persecution in relation to Bhutan, as well as Nepal, which it had failed to do.

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.”

The Tribunal’s decision:

The applicant’s claim was analysed, and the Tribunal set forth its conclusion, in Parts 6 & 7 respectively of the Decision: The Tribunal

stated:

“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.”

Submissions

Both the applicant and the respondent, respectively, have furnished extensive written legal submissions to the Court. These were

developed and somewhat amplified in oral argument at the hearing. The Court wishes to express its gratitude to Counsel for their

considerable assistance.

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."

The applicant points out that these international obligations were transposed into Irish law by the definition of "a refugee" in section 2

of the Refugee Act, 1996 which provides:

"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.”

The applicant has submitted that the first principle to be distilled from all of this is that, if possible, the question of refugee status

should be assessed in the context of the country of origin being the country of nationality. The applicant submits we are not

concerned in this case with dual nationality - Mr. Kafley has never claimed Nepalese nationality. He has only claimed to be a Bhutan

national, and Bhutan is "that country" for the purpose of section 2, and is the country where he is unable / unwilling to avail of

protection. The applicant submits that assessment in the context of the "country of his or her former residence" is only appropriate

where the applicant for asylum is stateless.

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."

The Court has also been referred to Lay Jong Tji v Minister for Immigration & Ethnic Affairs [1998] FCA 1380. In this case Finkelstein

J sitting in the Federal Court of Australia was dealing with a putative refugee born in East Timor who may have been a national of

Portugal. In the course of his judgment Finkelstein J stated:

“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 Applicant submitted that there was evidence before the Tribunal that he had “a social fact of attachment, a genuine connection

of existence, interests and sentiments” with Bhutan, and that he remained tied to that state by allegiance even though seeking

international protection from persecution by its authorities. It was submitted that the Tribunal member erred in law in failing to

consider whether the Applicant retained actual or effective Bhutanese nationality, and in failing to determine that he was Bhutanese

based on undisputed facts presented to the RAC and RAT. It was submitted that therefore the finding that the Applicant was

stateless flew in the face of the undisputed facts, and constituted a fundamental error of law.

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.”

It was submitted that the first named respondent failed to consider the applicant's evidence in relation to his country of origin and his

nationality, and in particular:

(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.

It was submitted that the first named respondent's decision disregards the weight, and predominance, of legal submissions made on

behalf of the applicant at his oral appeal and concludes that the “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.” The applicant

characterizes this ruling as irrational and unreasonable in the light of the written and oral submissions made on behalf of the applicant

at his oral appeal and also having regard to previous decisions lodged with the Tribunal in support of the applicant's claim.

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.

The applicant put forward no evidence of his citizenship of Bhutan. On that basis, the finding of the Tribunal that the applicant was

stateless was supported by the evidence before the Tribunal, and the submissions made by Counsel.

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.”

It was submitted that the Tribunal considered the applicant's appeal in a manner consistent with the UNHCR Guidelines which provide:

"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.)"

Counsel for the respondents submitted that it is clear in these circumstances that while the applicant may have considered himself to

be a Bhutanese national, the Tribunal Member was entitled to find that his appeal should be determined in the manner of that of a

stateless person. The Tribunal Member did not have to expressly find that he was not a national of Bhutan because his nationality

was not "clearly established" and so the Tribunal Member acted correctly in determining his application in the manner applicable to a

stateless person. It is submitted that the fact that the Tribunal Member did not consider country of origin information in relation to

Bhutan is evidence which supports the submission that the Tribunal found the applicant not to be a citizen or national of Bhutan. The

Court was referred to Matijevic v. Minister for Justice, Equality & Law Reform, The Refugee Appeals Tribunal and the Refugee

Applications Commissioner (unreported, High Court, Finlay-Geoghegan J, 4th June, 2003 ; [2003] WJSC-HC 8227.) wherein Ms Justice

Finlay-Geoghegan stated:

“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 further submitted on behalf of the respondents that the Tribunal Member analysed the applicant's circumstances, at page 18,

in deciding whether Nepal is the applicant's country of former habitual residence. On the basis of that analysis, he decided that it is

the applicant's country of former habitual residence, a conclusion which it is submitted was open to him on the evidence before him.

The Tribunal Member considered whether the applicant was a refugee having regard to the definition in relation to Nepal and found

that he was not.

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.”

The Court is unclear as to whether the argument based on waiver or acquiescence is also founded on the fact that the applicant

himself, at one point in the proceedings at least, made the case that he was stateless. Although the respondents’ submissions are

somewhat ambiguous in that regard the Court will assume it to be the case.

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)

This has been applied by the High Court in Banzuzi v. The Minister for Justice, Equality & Law Reform [2007] IEHC 2; A.W.S. v.The

Refugee Appeals Tribunal [2007] IEHC 276; T.G. v. The Refugee Appeals Tribunal [2007] IEHC 377 and M.T.J. v. The Refugee Appeals

Tribunal [2008] IEHC 102

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 is no allusion, good bad or indifferent, in the critical portion of the decision entitled “Submissions” to the advancement of any

argument in the appeal based upon a claim of Bhutanese nationality, whether on a primary or secondary basis. There is, however, a

reference there to statelessness, and in that regard it is stated:

“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.”

Moreover, in the “Analysis of Claim” portion this recorded submission is reiterated, as follows:

“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.”

However, the Court considers it to be significant that once again there is no reference to any submission based on Bhutanese

nationality.

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)

While it is not necessary for me to decide the point on a leave application, this Court would be very slow to accept that as a matter

of general principle it is never necessary for a Tribunal member to explicitly state that he/she was rejecting a claim of nationality in

favour of statelessness and that it is always to be inferred from a finding of statelessness that the nationality argument was being

rejected. Such an inference might be justified in certain circumstances providing, to draw an analogy from Matijevic, it is clear beyond

doubt that the Tribunal member had both recognized, and in some explicit way acknowledged, that a claim of specific nationality was

being advanced. The problem in the present case is that there is no such clarity, and there are substantial grounds for believing that

the Tribunal member erroneously proceeded under a mistaken belief that the applicant’s claim of specific nationality was a nominal

one, that in reality it was no longer being pursued and that he was accepting that his status was that of a stateless person, with the

only real issue being as to whether it is possible to have more than one former country of habitual residence.

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.”

The Court understands the applicant to be contending that he is a Bhutanese citizen of Nepalese ethnicity whose family is unable to

satisfy the new citizenship requirements. Moreover, he was also a member of the Bhutanese Peoples Party which opposes the

Government, was arrested and detained for five months for having been involved in an anti-government demonstration, and who was

only released having been forced “to sign a document saying that I would leave Bhutan”, with the result that he was coerced to

leave Bhutan under duress, without papers and in circumstances where all his property was confiscated. It seems to the Court that in

all the circumstances he was, arguably, “constructively deported,” and thereby subjected to discrimination and persecution.

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.