The High Court has dismissed a judicial review challenge to a 2010 Refugee Appeals Tribunal decision that treated an anonymised applicant as stateless and assessed his refugee claim by reference to Nepal.
In a judgment delivered on 17 July 2018, Mr Justice Richard Humphreys held that the tribunal was entitled to treat the applicant as having been deprived of Bhutanese nationality under Bhutanese law. For the purpose of deciding statelessness and refugee status, the court said, the alleged discriminatory or persecutory nature of the nationality deprivation did not change that assessment, even assuming the law fell short of international human rights standards.
The applicant, identified in the judgment as B.D. (Bhutan and Nepal), was born in Bhutan in 1975 and is of Nepali ethnicity. He said he took part in a 1990 protest against the Bhutanese government, and claimed his father was later killed and his mother disappeared. He fled to Nepal, where he lived without legal status for about 20 years before travelling through India to Ireland. These were claims described in the judgment; the court’s decision concerned the tribunal’s treatment of his nationality and asylum claim.
The tribunal had dismissed his asylum appeal on 6 July 2010. It found that he was stateless and that Nepal was his country of former habitual residence. The High Court found no basis to disturb the tribunal’s finding that Nepal was the relevant country. It also said the finding that the applicant was not unable or unwilling to return to Nepal because of a well-founded fear of persecution had not been effectively challenged, and in any event there was no basis to overturn it.
The applicant’s counsel argued that citizenship deprivation contrary to international law should not be recognised when deciding whether a person was stateless. The court rejected that argument. It said nationality should be assessed under the law of the country concerned as that country applies it, separately from whether that law complies with international human rights standards. The judge also said a possible exception for deprivation breaching a peremptory norm of international law had not been argued before the tribunal and could not be raised in the judicial review.
The court rejected other grounds, including challenges about Nepal as the country of former habitual residence and whether the applicant could be returned there. It said the return issue had not been put to the tribunal and lacked an evidential basis. One ground concerning an effective remedy was not pursued. The court ruled that no question needed to be referred to the Court of Justice of the European Union and dismissed the application. It did not order the applicant’s removal or make a new asylum decision.