The High Court has refused S.B. leave to bring a judicial review challenge to the Refugee Appeals Tribunal’s refusal of his application for refugee status. Mr Justice Feeney ruled on 18 June 2009 that S.B. had not established a substantial ground to challenge the Tribunal’s decision to assess his claim by reference to Nepal.
S.B., who was born in Bhutan and is of Nepalese ethnicity, said he and his family fled to Nepal in 1992 after persecution by Bhutanese authorities. He lived in Beldangi II Refugee Camp for 14 years. The judgment records that he said he had no right to work but took an unauthorised job in a nearby shop.
S.B. said Maoist rebels came to the shop on 21 April 2006 to demand money from its owner. He said he contacted police, who shot one of the rebels, and that the Maoists later threatened to kill him as a spy. He left Nepal for India two days later and eventually travelled to Ireland.
The Refugee Applications Commissioner treated S.B. as stateless and assessed his claim against Nepal, his country of habitual residence. The Commissioner found against his claim and recommended that he not be declared a refugee. On appeal, the Tribunal affirmed that recommendation after an oral hearing on 28 May 2007. It concluded that Nepal was the appropriate country against which to assess his claim.
S.B. argued that the Tribunal had not adequately explained why he lacked Bhutanese nationality or why Bhutan was not his country of former habitual residence. He also argued that the claim should be assessed in light of alleged persecution in Bhutan. These were submissions made in support of his application for leave, rather than findings by the High Court.
The High Court said habitual residence is a question of fact and that a stateless person’s claim must be assessed by reference to the country of former habitual residence. It accepted that a person may have a relationship with more than one country capable of being described as a former habitual residence. But it found that the Tribunal had a rational basis to identify Nepal, citing S.B.’s long residence there, his work, his family’s continued presence in the camp and the evidence that Nepal offered effective protection.
The court stressed that judicial review is not an appeal on the merits and is confined to examining the decision-making process. It found no established failure of fair procedures, unreasonableness or excess of jurisdiction. The ruling refused leave to seek judicial review; it did not grant refugee status or determine a new asylum application.