S (D) v Refugee Appeals Tribunal & Min for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE BIRMINGHAM |
| Judgment Date | 25 June 2008 |
| Neutral Citation | [2008] IEHC 193 |
| Judgment citation (vLex) | [2008] 6 JIC 2502 |
| Court | High Court |
| Date | 25 June 2008 |
[2008] IEHC 193
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S13(6)(A)
REFUGEE ACT 1996 S13(6)(E)
REFUGEE ACT 1996 S12(4)
ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE UNREP HIGH GILLIGAN 31.7.2003 2003/46/11163
DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP HIGH PEART 9.7.2004 2005/15/3102
IMMIGRATION
Asylum
Country of origin material - Leave to apply for judicial review - Fair procedures -Evidence - Inferences drawn from documentary evidence - Application of independent country of origin information to objective assessment of whether well founded fear of persecution exists - Whether correct and fair approach adopted - Whether material error of fact in decision - Whether decision unfair - Whether substantial grounds for contending that decision invalid and ought to be quashed - Rostas v Refugee Appeals Tribunal (Unrep, Gilligan J, 31/7/2003) considered; Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436 (Unrep, Peart J, 9/7/2004) distinguished - Leave to seek judicial review refused (2006/1107JR - Birmingham J - 25/6/2008) [2008] IEHC 193
S(D) v Refugee Appeals Tribunal
High Court Mr. Justice Birmingham
25/6/2008 2006 No. 1107 JR[ No. of pages 8]
Immigration - Asylum - Judicial review - leave - Refugee applicant - Bosnia -Serb - Ethnic Serbs - Material errors alleged - Fair procedure -Whether analysis of the documentation warranted leave for judicial review
Facts: The applicant Bosnian national sought leave to challenge a decision refusing his refugee status on ethnic grounds. The applicant alleged that the Tribunal had failed to address the fear of persecution alleged, that material errors were present in the decision and that the Tribunal had failed to properly consider the country of origin information available.
Held by Birmingham J (ex tempore) that what was required was a fair and balanced consideration of the documentation. The Tribunal approached the task with care and fairness. There was a broad consistency running through the information. There was no basis for contending that the decision of the Tribunal was inadequate or unfair. The application for leave would be refused.
Reporter: E.F.
MR. JUSTICE BIRMINGHAM delivered on the 25th day of June 2008
1. The applicant in this case was born on 8 th 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 22 nd 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. 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 21 st 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...
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