BDR v Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2016] IEHC 274
Nature of Proceedings:Judicial Review
Judgment Date/s:25 May 2016
Judge:Faherty M.
Category:Refugee Law
Keywords:Asylum, Protection (International), Refugee, Refugee Law, Stateless Person
Country of Origin:Bhutan
URL:https://www.courts.ie/acc/alfresco/61b87a1a-bde6-4b76-93c2-9c03819acb17/2016_IEHC_274_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts:

The applicant was born in Bhutan to parents of Nepalese ethnicity. He claimed he had been denied citizenship of Bhutan because of his ethnicity and that his family home had been attacked and his parents killed. He subsequently left Bhutan and went to live in India where he lived for a number of years, before ultimately arranging with a trafficker to get him out of India.  He arrived in Ireland in 2007 and claimed asylum. His asylum claim was refused at first instance by the Refugee Applications Commissioner and on appeal by the Refugee Appeals Tribunal. The first decision of the Tribunal was quashed by the High Court and his refugee appeal was remitted to the Tribunal for reconsideration. At the rehearing of his appeal, the Tribunal Member requested written legal submissions on the issue of the correct approach to the determination of a refugee application from a stateless person with more than one country of former habitual residence. Written legal submissions on this issue were duly filed, and the Tribunal Member subsequently dismissed the applicant’s appeal. Although the Tribunal Member accepted that the applicant was stateless, it found that because he would be unable to return to his country of former habitual residence (Bhutan) and that there was therefore no requirement to consider whether he had a well founded fear of persecution there. The applicant challenged this decision by way of judicial review.

Reasoning:

The High Court (Faherty J.) quashed the decision of the Tribunal. Faherty J. held that the Tribunal Member had erred in law in failing to consider whether the applicant had a well founded fear of persecution in his country of former habitual residence on the grounds that he would not be able to return there, holding that this ran counter to the weight of judicial and academic authority on the issue, and indeed the Convention itself.

On the issue of the assessment of refugee claims by stateless persons with more than one country of former habitual residence, Faherty J. endorsed the test set out in the Canadian case of Thabet v Canada (Minister of Citizenship and Immigration) [1996] 1 F.C. 685. The Thabet test states where a stateless asylum seeker has been resident in more than one country it is not necessary to prove that there was persecution at the hands of all those countries. But it is necessary to demonstrate that one country was guilty of persecution, and that the claimant is unable or unwilling to return to any of the states where he or she formerly habitually resided.

Faherty J. therefore quashed the decision of the Tribunal and remitted the appeal to the Refugee Appeals Tribunal for reconsideration by a new Tribunal Member.

Decision:

Refusal of refugee status quashed.

Principles:

The decision in BDR establishes that a stateless asylum seeker with more than one country of former habitual residence is not required to prove a well founded fear of persecution in every country of former habitual residence in order to be recognised as a refugee. It is sufficient that the asylum seeker has a well founded fear in one country of former habitual residence and that the asylum seeker is unable or unwilling to return to any of the other countries of former habitual residence. 

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