The High Court has refused a Croatian couple’s application for judicial review of decisions rejecting their refugee-status appeals, finding that neither of the two grounds on which the case proceeded had been established.
Mr and Mrs V, whose names are anonymised in the judgment, sought orders quashing the Refugee Appeals Tribunal’s decisions. They argued that discrimination they might face in Croatia could amount to persecution and that the Tribunal had failed to address an earlier decision involving a woman in a mixed marriage.
The husband is an ethnic Serb. The couple told the Tribunal they had faced difficulties in Croatia and Serbia, including barriers to employment and property rights. They said they left Serbia in 2005 after difficulties that included being unable to register a car, buy property in their own names or obtain full-time state employment. The husband also said he had sold property in his Croatian home village for half its market value. These were claims and accounts considered in the asylum proceedings, not findings by the High Court about conditions the couple would face if returned.
The Tribunal accepted that ethnic Serbs faced open discrimination in Croatia and that the couple had suffered considerable hardship. It nevertheless concluded that any discrimination they might face on return would not be sufficiently severe to constitute persecution. On judicial review, the applicants argued that country information showed discrimination was so serious that most ethnic Serbs could not remain in Croatia.
Justice Ryan held that discrimination can amount to persecution when its cumulative effects are sufficiently severe, but the Tribunal had applied that legal principle. The evidence did not require the Tribunal to reach only one conclusion, the judge said. The High Court’s role was not to decide whether it would have reached a different factual conclusion, but whether the Tribunal’s decision was legally open to it. The judge found that it was.
The applicants’ second ground concerned a 2004 Tribunal decision involving a woman in a mixed marriage. That earlier case had found a well-founded fear of persecution, but involved materially different circumstances, including the husband’s dual Serb and Roma ethnicity and his service in Serb armed forces. The High Court also noted the passage of time, Croatia’s subsequent designation as a safe country of origin, and information indicating improved conditions for ethnic Serbs. It held that the earlier decision was not sufficiently relevant to make the Tribunal’s failure to mention it unlawful or unfair.
The court therefore refused the relief sought. It did not decide whether the couple should be deported. Justice Ryan expressed hope that they could make a humanitarian case against a deportation order.