S. (D.) v. Refugee Appeals Tribunal & Anor [2008] IEHC 193 (25 June 2008)

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URL: http://www.bailii.org/ie/cases/IEHC/2008/2008_IEHC_193.html
Cite as: [2008] IEHC 193

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Neutral Citation: [2008] IEHC 193

    THE HIGH COURT
    2006 1107 JR
    BETWEEN
    D. S.
    APPLICANT
    AND
    THE REFUGEE APPEALS TRIBUNAL AND
    THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
    RESPONDENTS
    EX-TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 25th day of June 2008
  1. The applicant in this case was born on 8th July 1963 in what was then Yugoslavia but is now Bosnia. In 1973 the applicant's family moved to what is now Croatia. Ethnically he is a Serb, and he is an Orthodox Christian.

  2. The matter comes before the Court as an application for leave to seek judicial review of a decision of the first named respondent dated 22nd July 2006 which affirmed the recommendation/decision of the Refugee Applications Commissioner ("RAC") that the applicant not be declared to be a refugee. In recommending that the applicant not be declared to a be refugee, the RAC had invoked the provisions of section 13(6)(a) of the Refugee Act 1996, as amended, i.e. that the applicant showed either no basis or a minimal basis for the contention that he is a refugee, and also section 13(6)(e) of the 1996 Act, i.e. that the applicant was a national or had a right of residence in a safe country, the safe country in question being Croatia, a country so designated by the Minister under s.12(4) of the 1996 Act.

    3. Factual Background
  3. The background to the application for refugee status is that as I have mentioned, the applicant's family moved from what is now Bosnia to what is now Croatia in 1973. The applicant participated in the war from 1991 to 1995. His role seems to have been similar to membership of a Home Guard type body. His difficulties date, however, from 1997. The applicant claims that in March 1997, a grenade was thrown at his family home, destroying half of the roof. In June 1997, the applicant's dog was killed and his family started receiving threats urging them to depart Croatia for Bosnia. Initially these threats were not taken seriously. However in August 1997, three armed males - two of whom the applicant believed were policemen - attacked the applicant's family home and shot his brother, wounding him seriously. The applicant is critical of the professionalism of the surgical procedures performed on his injured brother at Vukovar Hospital, and suggests that this is attributable to the fact that he was a Serb. September of the same year saw the applicant's café attacked and the applicant being hit with a gun, resulting in his three front teeth being broken. He says that his car was stolen in this attack and that as a combined result of the attack and the verbal abuse and threats he was receiving, he was afraid to work any longer and was forced to close his café.

  4. In the aftermath of the injuries inflicted on the applicant's brother, the police called and took a report. However, to this day no one has ever been questioned, detained or charged and that is so notwithstanding that the applicant claims that the identity of those involved was known from the start. The applicant enquired a number of times about the progress of the investigation and was told on each occasion that the investigation was ongoing. In these circumstances, the applicant decided to launch his own legal proceedings, and he engaged a solicitor for this purpose. The first listing of this case took place on 21st May 2004. The following day, the applicant started to receive threatening phone calls demanding that the charges be withdrawn or the family would be killed. On this occasion the applicant decided to take the threats seriously and resolved to leave the country.

  5. Some twenty days before his actual departure for Ireland, the applicant's brother's dog was killed. This incident has figured prominently during the course of the present hearing, the suggested significance being that this was a repeat of what had happened in June 1997, when the killing of the applicant's dog was seen as a signal that an attack was planned. One of the principal criticisms of the Tribunal Member is that she does not deal directly with this issue in her decision.

  6. The applicant's decision to leave Croatia is put in the context of the ethnic tensions in Croatia and the problems encountered by Serbs in that country. It may be noted in passing that not all of the complaints made by the applicant have been particularly convincing. To take but one example, the applicant's belief that his brother died aged eighteen years from leukaemia, brought on as a result of having been bullied at school by Croats, does not seem at all probable. In the context of the difficulties experienced by Serbs, he has referred in particular to the difficulties he has experienced in obtaining Croatian passports for members of his family.

    7. The RAT Decision
  7. The applicant now seeks to challenge the Refugee Appeals Tribunal ("RAT")'s decision dated 25th July, 2006. The RAT decision that is challenged is a remarkably thorough one, running to no less than 25 pages. It is clear that the Tribunal Member approached her task in a particularly conscientious fashion. That is evident, too, in the initiative taken by the Tribunal Member to furnish the applicant's solicitors with a detailed document, described as a 'submission', referring to a decision of the UK Immigration Appeal Tribunal which sets out extracts from a number of Country of Origin sources, setting out additional extracts from further Country of Origin reports, outlining in some detail the Tribunal Member's approach to that documentation, and inviting a response. The applicant, through his lawyers, responded to this 'submission', complaining that the Country of Origin information quoted was out of date and that more up-to-date information was available. The response did not, however, take up an invitation contained in the Tribunal Member's submission to provide more detailed information in relation to the issue of failure to obtain identify documents.

  8. In challenging the Tribunal Member's decision, the applicant has focussed in particular on what is said to be:-

    9. a. A failure to address his individual and particular fear of persecution;

    b. Material Errors in the Tribunal Member's analysis; and

    c. An unacceptable treatment of the Country of Origin information that was available to the Tribunal Member.

    (a) Treatment of his Individual Fear of Persecution
  9. Notwithstanding the obvious care with which the Tribunal Member approached her task, the applicant complains that the decision fails to address the particular case for fear of persecution advanced by the applicant, i.e. that he had come under threat having initiated legal proceedings.

  10. The approach taken by the Tribunal Member has to be seen in the context that the applicant's case was that he feared persecution by non-state actors. In these circumstances the issue facing the Tribunal Member was whether state protection was available. This much was acknowledged on behalf of the applicant, whose written submission to the RAT stated as follows:-

    11. "The question regarding the well-founded fear of persecution largely involves the analysis of whether the applicant has a well-founded apprehension that the Croatian State would be unable to provide any effective protection to the appellant from persecution."
  11. The Tribunal Member clearly believed that she would be assisted in her task by an appreciation of ethnic relations in Croatia and the Government's response to the issue, evidenced by their handling of issues such as the prosecution of Croats for war crimes committed against Serbs, and housing and tenancy issues affecting the Serbian community. Against that background, the Tribunal Member concluded as follows:-

    12. "The government has clearly recognised the importance for Croatia of economic ties with the EU. Croats have been handed over to face trial on charges of crimes against Serbs and many inroads have been made to address the discrimination against Serbs. While I recognise that the situation is far from pleasant, the war and the destruction caused by it, in itself, cannot mean that surrogate protection is needed. I consider that the steps taken by the Croatian government despite the difficulties at local level and the obstacles that still exist are sufficient to provide the necessary protection."
  12. I am satisfied that the Tribunal Member posed the correct question to herself and that her conclusion arrived at after a careful and comprehensive analysis of the situation of ethnic Serbs in Croatia was one that was undoubtedly open to her.

    13. (b) Material Errors
  13. The applicant claims that the Tribunal Member's decision should be quashed because of errors in her analysis of the applicant's claim. The applicant claims that the Tribunal Member erred by stating that:-

    14. "The evidence of the appellant is that he suffered verbal abuse because of his Serbian ethnicity."
  14. The applicant contends that this does not do justice to his case, because in his submission the abuse suffered went beyond simple verbal abuse, even taking into account only the events that occurred prior to his departure from Croatia in 2004. It seems to me that the Tribunal Member's remark has to be seen in context, and that reading the decision as a whole, it is clear that the Tribunal Member was speaking at this point in respect of the period before the applicant's departure from Croatia. This is confirmed by the fact that the Tribunal Member's narrative of events refers specifically to the assault on the applicant at his café in Croatia, in which he lost three teeth.

  15. The applicant further contends that the Tribunal Member erred in making the following statement:-

    16. "The appellant was unable to say whether his two older children would be in a position to obtain passports."

  16. It seems to me that once again, the applicant takes the Tribunal Member's phrase out of context. The opening sentence of the paragraph where the phrase appears refers to the fact that all three of his children were born in Vukovar, in Croatia, and that he could not get documentation for them. The reference to the applicant being unable to say whether or not his two older children could obtain passports was in the context of the applicant recording that progress had been made, in that he had obtained a passport for his youngest child. It seems to me that the paragraph as a whole summarises the contents of the Interview Notes, at pages 10 and 11. In these circumstances, I am not persuaded that there has been any material error of fact such as to undermine the integrity of the RAT decision.

    17. (b) Treatment of Country of Origin Information
  17. The Tribunal Member's treatment of country of origin information has been criticised. It is said that her selection of quotations and extracts has been unbalanced, that she has ignored or failed to adequately take into account elements of the material that were advantageous to the applicant, and that where there was conflict between documents that she chose the version less favourable to the applicant.

  18. I have already referred to the exercise engaged in by the Tribunal Member of drawing the applicant's attention to what she saw as relevant extracts of the material available. It is clear from the text of the decision that the Tribunal Member was conscious of the need to approach Country of Origin information with care, and that she sought to avoid selective and unbalanced reliance on such information. In this regard, she referred to the applicant's submission, in reliance on the decision of Gilligan J. in Rostas v The Refugee Appeals Tribunal (unreported, High Court, July 31 2003), that where conflicting information was available, she should prefer the sources that are more favourable to the applicant to those which are not.

  19. The applicant has isolated individual paragraphs and sentences which he says support his position, highlighting in particular references in the documentation to the failure of domestic courts to prosecute Croats for war crimes against Serbs, and to the problem of witness intimidation. In this case, there was a very considerable volume of material available from multiple sources. In such a situation, it is always going to be possible to highlight individual passages as offering support for almost any proposition. However, it seems to me that what is required is a fair and balanced consideration of the overall thrust of the documentation. In my view the Tribunal Member approached that task with conspicuous care and fairness. The submissions have referred to conflicting sources but in my view, that is to overstate the position. This was not a case were there was clear and fundamental conflict which would compare to the situation considered by Peart J. in Da Silvera v The Refugee Appeals Tribunal [2004] IEHC 436, where there was a clear divergence of views between U.S and Canadian sources in relation to the situation that prevailed in Togo.

  20. Instead, while there are undoubtedly differences of emphasis, there is, I believe, a broad consistency running through the information. In these circumstances, the Tribunal Member has sought to synthesise the information. I do not believe that she can be criticised for the way in which she has performed her task. Neither do I believe that there is any substance in the suggestion that because much of the contents of the Tribunal Member's 'submission' made their way into her decision that there was an unacceptable element of prejudgment.

  21. The applicant is obviously disappointed at the conclusion arrived at by the Tribunal Member. However, I do not believe there is any basis for contending that the Tribunal Member's consideration of his application was inadequate or unfair and in the circumstances I must refuse the application for leave.

    22. Approved: Birmingham J.

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