V (G) & v (I) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 01 July 2011
• Neutral Citation: [2011] IEHC 262
• Court: High Court
• Date: 01 July 2011

[2011] IEHC 262

THE HIGH COURT

[Nos. 1101 and 1100 JR/2008]

V (G) & v (I) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

G. V. AND I. V.

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S12(4)

REFUGEE ACT 1996 S11A

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE UNREP GILLIGAN 31.7.2003 2003/46/11163

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9(2)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 51

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9

A (PP) v REFUGEE APPEALS TRIBUNAL (EAMES) & ORS 2007 4 IR 94 2007 1 ILRM 288 2006/3/519 2006 IESC 53

N (IT) v REFUGEE APPEALS TRIBUNAL (GARVEY) & ORS UNREP CLARK 13.10.2009 2009/41/10317 2009 IEHC 434

IMMIGRATION LAW

Asylum

Persecution - Discrimination - Previous tribunal decision - Whether failure to offer reasons for distinguishing previous decision - Croatian citizens - Mixed marriage between Croat and ethnic Serb - Alleged risk of persecution - Cumulative acts of discrimination - Assessment of tribunal - Whether conclusion reached open to tribunal - Country of origin information - Sufficient distinguishing features of previous decision - Significant factual differences - Passage of time - Designation of Croatia as safe country - Rostas v Refugee Appeals Tribunal (Unrep, Gilligan J, 31/7/2003); PPA v Refugee Appeals Tribunal [2006] IESC 53, [2007] 4 IR 94 and ITN v Refugee Appeals Tribunal [2009] IEHC 434 (Unrep, Clark J, 13/10/2009) considered - Refugee Act 1996 (No 17), s 2 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Relief refused (2008/1101JR & 2008/1100JR - Ryan J - 1/7/2011) [2011] IEHC 262

C (G) v Refugee Appeals Tribunal

1 JUDGMENT of Mr. Justice Ryan delivered the 1st July, 2011

2 1. This is a post-leave application for judicial review where the applicants Mr. and Mrs. V seek, among other reliefs, orders of certiorari quashing the decisions of the Refugee Appeals Tribunal (the "Tribunal") in respect of their respective applications for refugee status. The parties are husband and wife and the Court heard their two cases together because they involved the same issues. This Court was satisfied that there were two substantial grounds for contending that the decisions were invalid and ought to be quashed, namely,

3 (1) that the Tribunal erred in law in holding that the discrimination faced by the applicants did not constitute "persecution" within the meaning of s. 2 of the Refugee Act 1996;

4 (2) that the Tribunal failed to have regard to a previous Tribunal decision (Ref. 69/32501/01B) or failed to offer any reason for distinguishing that previous decision.

5 2. The applicants are both citizens of Croatia and the husband is an ethnic Serb. The couple married in 1989 and lived together in a village in northern Croatia but, according to the husband's account, following the outbreak of war in 1991, the great preponderance of the ethnic Serb population in the village fled and what had been a large ethnic majority of the village's population then became a tiny minority. The applicants fled first to Serbia, where they stayed for two weeks and were recognised as refugees, before moving to an area that was then a Serbian controlled part of eastern Croatia.

6 3. The wife says she returned once to her home village in 1996 whereupon threats were made to her against her husband's safety if he were to return there. According to the husband, people in the village blame him for failing to prevent war crimes that occurred there during the Serb-Croat conflict.

7 4. In 1998 the applicants left eastern Croatia because they say the Croats were returning en masse to the area and there were frequent incidents including violent clashes. The couple moved to Serbia proper and again successfully applied for refugee status but eventually decided to leave in 2005 as a result of various difficulties they experienced, including not being able to register their car, buy property in their own name or obtain full-time state employment. It is claimed that the couple's mixed marriage has given rise to serious strains on both sides of the family. The husband says that he was unable to claim Serbian citizenship because he would have had to renounce his Croatian citizenship to do so, something which he has do wish to do. The husband sold his property in his home village but due to his circumstances he says he was forced to accept a price that was half of the market value. The husband also says that his mother (now deceased) had been denied her pension entitlements, which he claims was ethnically motivated, and he also complains of the length of time it took him to sort out his inheritance from his mother.

8 5. The couple arrived in Ireland in March, 2005 and applied for asylum. They were both rejected at the s. 13 stage by the Refugee Applications Commissioner and on appeal by the Refugee Appeals Tribunal. Of note is the fact that on 15 ^th November, 2004, the Minister for Justice designated Croatia as a safe country of origin pursuant to s. 12(4) of the Refugee Act 1996. The significance of this is in relation to s. 11A of the Act, which provides:-

9 2 11A.-(1) Where, at any time during the investigation of an application by the Commissioner under sect ion 11, it appears to him or her that an applicant-

10 (a) is a national of, or has a right of residence in, a country standing designated by order under section 12(4) as a safe country of origin, or

11 (b) had lodged a prior application for asylum in another state party to the Geneva Convention,

12 then the applicant shall be presumed not to be a refugee unless he or she shows reasonable grounds for the contention that he or she is a refugee.

13 […]

14 (3) Where an applicant appeals against a recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee.

15 6. Thus, there is a presumption that a person from a designated safe country is not a refugee and the applicant therefore has to discharge what I think is a higher onus, because he or she has to displace this presumption. Another consequence is that in most circumstances the decision of the Commissioner against recommending refugee status can only be appealed on paper and not by way of an oral hearing. That is what happened in this case, as the Commissioner confined the appeal to writing only. The applicants' written submissions to the Tribunal were accompanied by a substantial body of supporting documentation, including country of origin information.

16 7. The focus of the appeal was very much on the risks facing the husband if returned to Croatia as an ethnic Serb, and the wife's claim was assessed largely on the basis that she might be at risk because she is party to a mixed marriage. The same Tribunal member, Ms. Elizabeth O'Brien, determined both appeals, in decisions dated 9 ^th September, 2008.

17 8. In the earlier part of her decision, the Tribunal member acknowledged various country of origin information submitted on behalf of the applicants:-

"Reference is made to the fact that little more than one third of the over 300,000 ethnic Serb IDPs and refugees have been able to return to Croatia. It offers the opinion that about two thirds of past returns are not sustainable and for the remaining Croat IDPs the main obstacle to return is the poor economic conditions in return areas. For Serb IDPs the main barriers to return and reintegration are property, housing issues and lack of employment opportunities as well as continuing discrimination.

According to the International Helsinki Foundation, there are reports of cases of ethnically motivated discrimination in certain areas of employment, for example State institutions, hospitals, courts and schools reportedly rejected job applicants of those categories (of mixed Serbs) although they had adequate training and instead hired people from other Croatian cities. Reference is made to the US Department of State Human Rights Practices Report for 2006 which states that the government did not fully implement programmes providing housing to ethnic Serb refugees who lost access to socialised housing. While NGOs noted a significant decline in violence against ethnic Serbs, societal violence and discrimination against ethnic minorities, particularly Serbs and Roma, remained a problem. It also refers to the fact that open discrimination continued against ethnic Serbs and Roma."

18 This notwithstanding, the Tribunal member was not satisfied that there was a well-founded fear of persecution in this case:

"I accept the country of origin information that points out that there is still open discrimination against ethnic Serbs in Croatia, along with other minorities, however I need not point out that discrimination per se does not constitute persecution. As acknowledged by the applicant's legal representatives in the submissions, discrimination may amount to persecution if it has effects of a substantially prejudicial nature. Thus for example if the discrimination in question led to an applicant being in effect unable to feed his family, such that the most basic human right, the right to life, was threatened, then such discrimination would clearly amount to persecution. However it is not apparent to me that the discrimination that is prevalent in Croatia is of such a nature and extent, or of such a degree that it would cause...