The High Court granted an asylum applicant leave to seek judicial review of a Refugee Appeals Tribunal decision, finding substantial grounds to argue that the tribunal failed to engage with his primary claim that he was a Bhutanese national, not stateless.
In a judgment delivered on 10 February 2010, Mr Justice John Edwards said the challenge concerned a tribunal decision that had affirmed the Refugee Applications Commissioner’s recommendation that the applicant should not be declared a refugee. The tribunal assessed his claim on the basis that he was stateless and that Nepal was his country of former habitual residence.
The applicant said he was born in Bhutan and lived there until 1992, when he said authorities detained and mistreated him, made him sign a document agreeing to leave, and confiscated his family’s property. He said he later lived in a refugee camp in Nepal and fled after Maoists threatened him for refusing to join them. These were his claims; the High Court expressly made no finding on their credibility or reliability.
The court said it was not satisfied that the tribunal had properly understood the applicant’s primary nationality argument. It pointed to the tribunal decision’s repeated references to possible statelessness and Nepal as the former habitual residence, without mentioning a submission that Bhutanese nationality was the primary case. The judge considered there were substantial grounds to infer that the tribunal may have misunderstood the applicant’s position, while stressing that he did not attribute culpable default to the tribunal member.
The respondents argued that the tribunal was entitled to treat the applicant’s nationality as unestablished and assess the claim as it would for a stateless person. They also relied on his earlier use of the term “stateless” in appeal materials and argued that he had waived or abandoned the nationality claim. The court was not persuaded that waiver or acquiescence applied in these circumstances.
The ruling was confined to whether the applicant had grounds to bring a judicial review challenge. The court did not determine his nationality, the truth of his account, whether he faced persecution, or whether he qualified as a refugee. It said the precise form of the order would be discussed with counsel.