L. -v- Refugee Appeals Tribunal & Anor, [2008] IEHC 351 (2008)

Docket Number:2006 977 JR
Party Name:L., Refugee Appeals Tribunal & Anor
Judge:Hedigan J.

THE HIGH COURT2006 977 JRBETWEEND. L. APPLICANTANDTHE REFUGEE APPEALS TRIBUNAL ANDTHE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORMRESPONDENTSJUDGMENT 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 Background2. 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 Stage6. 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...

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