The High Court quashed a Refugee Appeals Tribunal decision refusing a stateless man’s refugee appeal, finding that errors in the Tribunal’s assessment had undermined its decision. The appeal was remitted for de novo consideration by a different Tribunal member. The court did not decide whether the man qualifies for refugee status or whether denial of entry to Bhutan itself amounted to persecution.
The applicant, identified in the judgment as B. D. R., said he was born in Bhutan to parents of Nepalese ethnicity and was denied Bhutanese citizenship because of his ethnic background. He said his family home was set on fire in 1990, his parents were killed and he suffered burns. He later lived in India for about 16 years. The Tribunal accepted, on the balance of probabilities, that he was stateless and found he could not return to Bhutan, where he said he feared persecution because of his race.
The Tribunal refused his appeal in February 2015. It concluded that because return to Bhutan was factually impossible, his fear of persecution there could not be well-founded. It also noted that he had left India voluntarily and had not claimed fear of Convention-related persecution there.
The High Court held that inability to return to Bhutan did not, by itself, defeat the claim of a well-founded fear. It found that the Tribunal’s approach was inconsistent with the refugee definition and the weight of authority. The error also prevented the applicant from having his claimed risk of persecution in Bhutan properly assessed.
The court said the Tribunal’s comments about India could not save the decision. There was no express finding that India was willing and able to protect the applicant, and the Tribunal had assessed whether he feared Convention-related persecution in India rather than properly addressing whether India could provide protection. His evidence that Indian authorities might send him back to Bhutan also had to be weighed.
The court declined to decide whether the applicant’s inability to return to Bhutan itself constituted persecution. It said that issue had not been sufficiently raised in the asylum proceedings, and judicial review was not the place for the court to decide it in the first instance.
The Tribunal had also rejected “compelling reasons” under Regulation 5(2) without substantively assessing whether the claimed past persecution could warrant protection. The High Court found that this conclusion was infected by the earlier legal error. It therefore issued an order of certiorari and remitted the matter for a fresh hearing and decision by a different Tribunal member.