High Court refuses leave for judicial review of Refugee Appeals Tribunal's decision denying refugee status to a Croatian national.

Neutral Citation Number: [2008] IEHC 351

THE HIGH COURT

2006 977 JR

BETWEEN

D. L.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

Judgment of Mr. Justice Hedigan, delivered on the 11th day of November, 2008.

1. The applicant is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (“RAT”) to affirm the

earlier recommendation of the Office of the Refugee Applications Commissioner (“ORAC”) that he should not be declared a refugee.

Factual Background

2. The applicant is a national of Croatia. He is of Serbian ethnicity and is an Orthodox Christian. His father was Serbian and his mother

is Croatian. Until 1994, he lived in the city of Vukovar in eastern Croatia. During the war of independence in Croatia, he was a soldier

in the Yugoslav People’s Army (JNA) and a member of the territorial defence forces of the Republic of Serbian Krajina (RSK), a self-

declared independent Serb entity. In that capacity, he fought against the Croatian army, but escaped to Serbia in 1994. His brother

was a lieutenant in the JNA from 1991 to 1996 and his father was a member of the Democratic Party of Serbia.

3. When the applicant returned to Vukovar in December, 1997, local Croats shot at him through a window of his family home. The

next morning, he returned to Serbia where he applied unsuccessfully for citizenship. In December, 1998, he returned to Vukovar to

obtain personal documents. He was given a falsified birth certificate stating that he had citizenship in Serbia. When he objected, he

was sent to a local police station where he was detained for three hours and questioned about his escape to Serbia, his role in the

war and his knowledge of war crimes. A list of wanted persons was read out to him. He was punched, kicked and stepped on, as a

result of which five of his teeth were knocked out and his hearing, which had been damaged in the war, was further affected. He was

released only when the police realised he was no longer able to hear the questions posed to him.

4. The applicant immediately returned to Serbia. In March, 1999, he journeyed to Vukovar for one day, again seeking his personal

documents. He was able to obtain his original birth certificate and he applied for a Croatian passport. The next day, he returned to

Serbia. In October, 1999, he travelled from Serbia to England, where he unsuccessfully applied for asylum. He was deported to Croatia

on 10th April, 2003. The Croatian police singled him out and questioned him for two hours at the airport. The applicant’s father set

about procuring a visa from the Consulate in Vukovar to allow the applicant to enter Serbia. While waiting for the visa to be issued,

the applicant remained in a nearby village; he did not go to Vukovar as a number of local Serbs had recently been arrested there and

the investigation was ongoing. He entered Serbia on 23rd April, 2003 and soon afterwards journeyed on to Ireland via Hungary.

5. The applicant’s brother has also fled Croatia, after being sought out by the Croatian police at his home in Vukovar in 1998. He has

been granted refugee status in Australia. From 1998 to 2002, local Croats sought to force the applicant’s father to sell their house in

Vukovar and return to Serbia, and they sought information from him about the applicant and his brother. His father subsequently

suffered two heart attacks and died in 2003. His mother remains in the family home in Vukovar.

The ORAC Stage

6. The applicant applied for asylum in the ordinary way upon arrival in the State on 6th May, 2003. In his ORAC questionnaire, which

he completed on 16th May, 2003, he stated that he fears being questioned by the Croatian police about the war and asked to testify

against Serbian commanders and soldiers with whom he fought in the war. He stated that he also fears local Croats, who seek

revenge against him, and those local Serbs against whom he may be compelled to testify.

7. The applicant attended for interview in January, 2004 with an authorised ORAC officer. In the report that was drawn up in

compliance with section 13(1) of the Refugee Act 1996, dated 20th February, 2004, the officer recommended that the applicant

should not be declared a refugee. She concluded that he had not presented any evidence of having been individually targeted, noted

that he had already been refused refugee status in England, and cited country of origin information to the effect that sufficient

human rights protections are now in place in Croatia.

The RAT Stage

8. The applicant appealed to the RAT and an oral hearing took place on 4th May, 2004. The decision that was arrived at after the

original hearing was subsequently vacated and the matter was reheard by another Tribunal Member on 6th June, 2006. Submitted in

support of his appeal were a U.S. State Department Human Rights Report on Croatia (2002), an ICG report entitled “A Half-Hearted

Welcome: Refugee Returns to Croatia” (2002) and an OSCE press release entitled “OSCE sees progress on Croatia key laws” (2003).

By decision dated 13th July, 2006, the Tribunal Member rejected the appeal on the basis of her conclusion that the applicant does not

have a well-founded fear of persecution if returned to Croatia.

The Submissions

9. The applicant complaints that the RAT decision is flawed on the basis of:-

a. Errors of fact;

b. Trivialisation of past persecution;

c. Treatment of the risk of persecution; and

d. Treatment of country of origin information.

(a) Errors of Fact

10. The applicant contends that the Tribunal Member erred in fact with respect to the applicant’s citizenship of Serbia and refugee

status. At page 1 of her decision, the Tribunal Member states “The applicant … has Serbian refugee status.” At page 4, she notes

that the Presenting Officer indicated at the oral hearing that the applicant has Serbian refugee status. At page 8, she indicates that

the applicant fears being questioned by the police “because he had Serb citizenship”. It is pointed out that the applicant’s

uncontroverted evidence is that he does not have citizenship of Serbia; he is a citizen of Croatia. Moreover, he gave uncontroverted

evidence at the oral hearing that because he had spent the previous six years outside of Serbia, refugee status was no longer

available to him there.

11. In addition, it is said that at page 9 of her decision, the Tribunal Member mistakenly stated that the applicant refused to give

details of persons with whom he had served, to the Croatian police. It is pointed out that when setting out the applicant’s evidence

at page 2 of her decision, the Tribunal Member noted that the applicant told the police that “he didn’t recognise any of the names.”

12. The applicant says that these errors of fact influenced the Tribunal Member’s assessment of the applicant’s claim and therefore

render the decision irrational and in breach of fair procedures. Reliance is placed on Carciu v The Refugee Appeals Tribunal [2003]

IEHC 41, where Finlay Geoghegan J. set out the following principle:-

“It seems to me that … if a decision maker is assessing the credibility of an applicant and that decision is based on an

incorrect, undisputed fact, that unless it can be established that that incorrect fact is clearly so insignificant that it was

not material to the decision maker, that there is a potential breach of an obligation to observe fair procedures, or it may

be asserted that the decision is unreasonable or irrational as based upon erroneous fact.”

13. The respondents submit that the Tribunal Member’s errors were not material to her decision within the meaning set out in Carciu.

Rather, the decision was based on her analysis of the applicant’s fears owing to his Serb ethnicity.

(b) Trivialisation of Past Persecution

14. It is submitted that the Tribunal Member both trivialised and failed to properly evaluate the evidence given by the applicant as to

the persecution suffered by him in the past. It is noted that the Tribunal Member made no reference, in the portion of her decision

containing the assessment of his claim, to beating sustained by the applicant at the hands of police officers.

15. The respondent contends that the Tribunal Member did, in fact, take account of the past persecution. It is pointed out that she

referred in the introductory sections to the fact that the applicant was beaten and that no adverse credibility findings were made in

that – or any other – respect. It is also submitted that it does not follow from the absence of an express reference to an issue that

the issue has not been given due consideration.

(c) Treatment of the risk of persecution

16. At page 9 of her decision, the Tribunal Member set out that “[w]here there is evidence of past mistreatment …, it is an excellent

indicator of the fate of an applicant were he to return to his country of origin.” The applicant contends that the Tribunal Member

failed to correctly apply that test and that she failed to take account, in that regard, of the past persecution suffered by the

applicant. It is submitted that the past persecution suffered by the applicant gives rise to a presumption that he will be at risk of

persecution in the future, if returned to Croatia.

17. The respondent submits that the Tribunal Member made no error when assessing the risk of persecution, in the light of the

country of origin information before her. It is pointed out that the applicant was released from custody even though he did not

provide details of the Serb soldiers with whom he had served, and no steps were taken thereafter to either prosecute him or to

compel him to be a witness.

(d) Treatment of Country of Origin Information

18. The applicant contends that the Tribunal Member failed to adequately consider the country of origin information (“COI”) that was

before her, and that the COI relied on does not support the conclusion that the applicant does not have a well founded fear of

persecution. The applicant points out that country reports cited by the Tribunal Member state that a disproportionate amount of war

crimes prosecutions were taken against ethnic Serbs in Croatia and that ethnic Serbs have been convicted in cases where the

evidence did not support the charges.

19. Although it is accepted on behalf of the applicant that the COI does indicate an improvement in the situation prevailing in Croatia,

it is contended that the COI must be considered in its totality in the light of the applicant’s experiences. In that regard, reliance is

placed on the principle set out by Pearl J. in Horvath v Secretary of State for the Home Department [1999] INLR 7, a decision of the

UK Immigration Appeal Tribunal, that “one cannot assess a claim without placing that claim into the context of the background

information of the country of origin” and that “the probative value of the evidence must be evaluated in the light of what is known

about the conditions in the claimant’s country of origin.” That principle was cited with approval by Finlay Geoghegan J. in Kramarenko

v The Refugee Appeals Tribunal [2004] IEHC 240; [2005] 4 I.R. 321, at p. 326 and since has been applied by a number of my

colleagues.

20. The respondents note that apart from the 12 days spent there in 2003, the applicant has not been in Croatia since 1999. It is

noted that the COI demonstrates that since then, there has been an improvement in the state of affairs in Croatia, that many of the

war crimes verdicts coming before the Supreme Court were overturned, that new prosecutions against Serbs numbered only two in

2004.

The Court’s Assessment

21. This being a leave application, the applicant must show substantial grounds for the contention that the RAT decision ought to be

quashed. As is now well established, this means that grounds must be shown that are reasonable, weighty and arguable, as opposed

to trivial or tenuous.

22. My approach as to the appropriate standard of review is, as I have previously stated (see e.g. E.A.W v The Refugee Appeals

Tribunal & Anor (Unreported, Hedigan J., High Court, 4th November, 2008)), that whether it is given the label “anxious scrutiny” or

otherwise, I sympathise with the adoption of a stricter approach in cases involving potentially serious violations of human or

constitutional rights, and I will continue to be careful and thorough when reviewing decisions that potentially impact upon such rights.

(a) Errors of Fact

23. I consider that the Tribunal Member’s statement that the applicant refused to give details about persons with whom he served in

the army was on all fours with the applicant’s evidence. In his ORAC interview, when asked what occurred in the police station in

1998 (question 27), the applicant replied “They asked me … who were my commanders during the war. They asked me to identify war

criminals. I refused to do so. I said I hadn’t known any of the men they had shown me.” At question 49, he reiterated that “I refused

to recognise all the names on the list. I refused to answer.” Thus, it is clear that the Tribunal Member made no error in that regard.

24. There is no doubt, however, that the Tribunal Member erred in fact with respect to the applicant’s citizenship and refugee status.

In the circumstances, as this Court noted at paragraph 25 in P. I. E. v The Refugee Appeals Tribunal (Unreported, Hedigan J., High

Court, 30th October, 2008), the question is whether, in the light of these errors, there are substantial grounds for the contention

that the RAT decision is irrational, unreasonable or in breach of fair procedures.

25. The answer to this question may be found by reference to the judgment of Finlay Geoghegan J. in Carciu v The Refugee Appeals

Tribunal [2003] IEHC 41. In the decision that was challenged in that case, the Tribunal Member made two errors of fact. First, he

stated that the applicant had misrepresented the location of his wife when he applied for asylum and at interview. Secondly, the

Tribunal Member stated that the applicant claimed that his business and car were destroyed. It was accepted that the applicant had

done so at interview but not when applying for asylum, and that he had never mentioned a car. Finlay Geoghegan J. found that there

were substantial grounds for the contention that the first error was material to the Tribunal Member’s decision on the applicant’s

credibility, noting that it was not possible to determine “what would or would not tip the balance” in view of the way in which the RAT

decision was presented to the Court. In respect of the second error, she noted that it “may fall into a category of fact which this

Court would not find to be sufficient to ground a claim of invalidity”.

26. In my view, the errors made in the present case are distinguishable from the first error made in Carciu, and might be said to

compare more to the second error in that case. The errors made in the present case did not impact on the assessment of the

applicant’s credibility; indeed, no negative credibility findings were made in this case. In addition, it cannot be said that it is unclear

whether or not the errors tipped the balance of the Tribunal Member’s analysis against the applicant; it seems clear to me that they

did not impact on the Tribunal Member’s analysis at all. The Tribunal Member’s decision was, instead, squarely based on the

applicant’s claim of being persecuted on the basis of his Serbian ethnicity. Thus, it seems to me that the errors were, to use the

words of Finlay Geoghegan J. in Carciu, “so insignificant that [they were] not material to the decision maker”. In the circumstances,

although regrettable, the errors are not sufficient to ground a claim of invalidity.

(b) Trivialisation of Past Persecution

27. When setting out the applicant’s evidence at the beginning of her decision, the Tribunal Member detailed the applicant’s

experiences of being shot at in 1997 and of being detained and beaten in 1998. When she came to analyse his claim, she noted that

two incidents of persecution had occurred, involving “a bullet coming through his house” and “his detention in the police station a

year later.” The Tribunal Member made no negative credibility findings in respect of the applicant’s account and so it must be

assumed that she accepted the veracity of his experiences. Indeed, in her concluding paragraphs she remarked that “the applicant

may have had a genuine subjective fear in relation to past persecution.”

28. Reading the decision as a whole, it is clear to me that the Tribunal Member had due regard to the persecution suffered by the

applicant in the past and I firmly reject the contention that she trivialised that experience. It is, in my view, immaterial that when

analysing the applicant’s claim, the Tribunal Member did not repeat that the applicant had been beaten, given that she had previously

made reference to that instance of persecution. No evidence has been shown, either direct or inferential, that the Tribunal Member

ignored the representations made as to past persecution and so, in accordance with the decision of Hardiman J. in G.K. v The Minister

for Justice, Equality and Law Reform [2002] 2 I.R. 418, there are no grounds for the contention that past persecution was not given

due consideration.

29. I would add that, as noted by Herbert J. in D.K. v The Minister for Justice, Equality and Law Reform [2006] 3 I.R. 368, the

assessment of the weight to be attached to the evidence offered by or on behalf of an applicant is a matter for the decision-maker

and this Court has no role in that regard.

(c) Failure to apply forward-looking test in light of past persecution

30. In Rostas v The Refugee Appeals Tribunal (Unreported, Gilligan J., High Court, 31st July, 2003) it was held that:-

“The test for persecution is a forward looking one, but past persecution may indicate a reasonable likelihood of present or

prospective persecution unless there has been a major change in circumstances in the country of origin.”

31. The Tribunal Member set out a test along these lines at page 9 of her decision. In my view, she went on to properly apply that

test in a reasonable and logical manner and in accordance with fair procedures. The Tribunal Member balanced the applicant’s genuine

subjective fears as a result of his past persecution with the objective country of origin information that was before her, which

indicates that there have been improvements in the situation in Croatia. It was, therefore, open to her to reach the conclusion that

looking forward, the applicant does not have a well-founded fear of persecution.

(d) Treatment of Country of Origin Information

32. In her decision, the Tribunal Member cited from a country report on Croatia (2005) that forms part of the Freedom House Nations

in Transit series, and a section of an OSCE report with respect to trial monitoring. She commented that although the reports indicate

that there was a disproportionate number of Serbs prosecuted as against Croats, it also indicates that only two new war crime

indictments were raised in 2004 against Serbs. She noted that the applicant was released from detention notwithstanding the fact

that he refused to give details about people he served with in the army, and she pointed out that he was not compelled to be a

witness in 1999. This led her to conclude that there was no reasonable chance that he would be compelled to be a witness if he were

now to return to Croatia.

33. In my view, the summation that the Tribunal Member made of the COI that was before her was fair and reasonable. When

considered in the round, it is evident from the reports cited by the Tribunal Member and the COI that was submitted on behalf of the

applicant with his Notice of Appeal (see paragraph 8 above) that although there has been ethnic bias in the selection of persons for

prosecution, major improvements have taken place since 1999, when the applicant last spent any considerable period of time in

Croatia. In my view, therefore, the conclusion reached by the Tribunal Member was, in compliance with the Horvath principle,

grounded on a clear understanding of the evidence before her and the COI as a whole.

Conclusion

34. In the light of the foregoing, I am not satisfied that substantial grounds have been established and accordingly, I must refuse

leave.