England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday, 14th May 2001

1. LORD JUSTICE MUMMERY:I will ask Lady Justice Arden to give the first judgment.
2. LADY JUSTICE ARDEN: This is an appeal, with the permission of Lord Justice Laws, of Dejan Sajfudinov from the determination of the Immigration Appeal Tribunal of 13th October 2000.
3. The facts are that the appellant is a Croatian Serb. He arrived in the United Kingdom on about 30th April 1999 and immediately claimed asylum. He had lived in the village of Borovo Selo in Vukovar, Eastern Slavonia, Croatia, which is Serb dominated. His village was a Serb village. He had become a member of the Serb Democratic Party. In 1991/1992 he was conscripted into the Serb Forces to defend his village against the Croatian Forces. The adjudicator found that in January 1998 Vukovar fell under the control of the Croatians. As a member of the Serb Armed Forces and a member of the SDP, he was exposed to persecution and harassment by the Croatians. He received certain death threats and the authorities failed to protect him. So the position is that he was in his village while it was under Croatian control for about one year before he came to the United Kingdom.
4. In his asylum interview he referred to an incident in November 1998 when he was threatened by some Croats with a pistol while he was at his sister's house at a nearby village. The police came later to investigate at the request of his sister. It is of some significance that the police were sought and that indeed they came. The appellant referred to some five or six smaller incidents which had also taken place. But there is no evidence that the appellant was previously one of those who was amnestied as a result of his participation in the Serbian Forces. Indeed, the evidence shows that such persons were mentioned by name, but there is no evidence that the appellant's name was among them. Nor is there any evidence that he has ever been charged with a war crime. There is simply no evidence on that point, although there is evidence that a certain number of members of the Serbian Armed Forces have been charged, and wrongly charged.
5. These proceedings have taken place on the basis that at the date of leaving Croatia the appellant did have a well-founded fear of persecution. The issue is whether that fear has continued to the date of the hearing before the Immigration Appeal Tribunal. It is well established that, in deciding whether an applicant's fear of persecution is well founded, it is sufficient for a decision-maker to be satisfied that there is a reasonable likelihood that the applicant would be persecuted for a Convention reason if returned to his own country: see R v Secretary of State for the Home Department, ex parte Sivakumaran [1998] AC 958.
6. On 3rd July 1999 the Secretary of State for the Home Department refused asylum. Mr Blake, who appears for the appellant, has criticised that decision. There was then an appeal to the special adjudicator. There was no issue as to the credibility of the appellant, but the special adjudicator concluded that the appellant had not demonstrated, to the lower standard of proof which I have described, that he would be persecuted for a Convention reason if he were to be returned to Croatia.
7. The matter then came before the Immigration Appeal Tribunal. There were a large number of in-country reports before the tribunal. They took into account a report by Mrs Savic, a solicitor, dated 18th May 2000. They took into account a report prepared by Judge Christer Karphammer, who had not been in Vukovar since June 1999 but who had previously been the head of a legal unit in the Co-ordination Centre of the Organisation for Security and Co-operation in Europe ("OSCE") in Vukovar and who was, even after then, a regular visitor to Vukovar. The substance of his report, which I will come to later, is that there had been no change on the ground to date.
8. The Immigration Appeal Tribunal also had before it Bulletin 3/00 issued by the Home Department, which said that asylum seekers from Eastern Slavonia were unlikely to be able to establish claims to asylum, a United Nations High Commission for Refugees ("UNHCR") report or document, which we have not seen, which supported the return of Croatian Serbs to Croatia and an OSCE report published in July 2000, which reported that there was an improved atmosphere for returning Croats.
9. The tribunal referred to a number of other documents, including Migration News Sheets and, in particular, an e-mail from Maricela Daniel of UNHCR, the representative of UNHCR in Vukovar. She referred to the need to continue to press the Croatian government to make legislative changes and said that there is a need to act with caution whilst the government's official position becomes a reality at local level. I will need to refer to that e-mail in detail below.
10. The tribunal noted the reference in the Savic report to there being "hidden lists" of persons to be charged with war crimes, but rejected that evidence as based on rumour. The tribunal did not accept that the appellant would be on any such list in any event. In the result, the tribunal found that the appellant did not have a well-founded fear of persecution and said that they were supported in their view by the attitude of UNHCR.
11. The grounds of appeal set out a number of grounds. It is said that the decision of the tribunal was Wednesbury unreasonable, having regard to other determinations of the tribunal on claims to asylum by Croatian Serbs. It is said that the tribunal's rejection of the submission that there was no sufficient "trickle down" of reforms in Croatia from the national to the local level was, in effect, against the weight of the evidence. I will need to come back to this point in more detail. There was a reference to fresh evidence referring to the arrests of Serbs, but no application to put in fresh evidence has been pursued on this appeal and I need say no more about that or about the evidence that was sought to be put in. It is said in the grounds of appeal that the tribunal paid insufficient regard to the appellant's military service; that the tribunal placed excessive reliance on hearsay evidence; that the tribunal should have accepted evidence as to the secret lists, and that the tribunal misdirected itself as to the standard of proof to be satisfied by the appellant, and that the tribunal did not take into account that such lists were necessarily hidden. Finally, it is said that the tribunal failed to give sufficient reasons for declining to follow other tribunal determinations.
12. Laws LJ gave permission to appeal primarily on the ground that the tribunal did not give reasons for the rejection of the submission that there was no sufficient trickle down of reforms to the local level. He found that this argument was supported by a passage in the OSCE report dated July 2000, to the effect that there was a lack of significant shifts at the local level. I will have to refer to that in more detail below.
13. Mr Waheed, junior counsel for the appellant, put in a helpful and extensive skeleton argument, supplemented by further skeleton arguments. They show the two broad areas on which this appeal has been pursued. The first is that the appellant was involved in military service and the tribunal failed to take that properly into account. Secondly, there are criticisms made of the tribunal's assessment of the general situation in Croatia. Mr Waheed amplified those two matters by detailed submissions in his skeleton arguments. Those two submissions have been presented to us today by Mr Blake QC, for the appellant, with Mr Waheed. I therefore do not propose, without intending any discourtesy, to summarise the way in which Mr Waheed put his submissions in detail in his skeleton arguments. It is, as I see it, sufficient for me to deal with it on the basis of the way Mr Blake has put the case to us today.
14. I now turn, therefore, to Mr Blake's submissions. Mr Blake began his submissions by taking us in detail to the evidence that was before the tribunal on the position in Croatia. I intend to go to those documents in the order in which he took the court to them and to indicate briefly the important and significant parts of them, as explained to us by Mr Blake.
15. The first document chronologically is the US State Department in-country report for 1999 issued in February 2000. This report refers to persecutions of Croatian Serbs for alleged war crimes, especially in Eastern Slavonia. Prosecutions were being started even against Croatian Serbs whom it had previously been announced were amnestied, and it was said that the judicial system was biased against the Serbs.
16. The next document to which Mr Blake referred us was the important report of Judge Karphammer dated 6th October 1999. I have already explained in outline the basis of Judge Karphammer's expertise. He is obviously someone who is very knowledgeable about Vukovar. The essential points in his report appear in paragraphs 17, 24 and 41. In paragraph 17 he says this:

"Judges, prosecutors and lawyers have implied to me that, further, old preliminary investigations and Bills of Indictment issued by the former Military Court in Osijek or Courts of Appeal will appear when the time is appropriate. This `hint' has also been published in the Croatian media. One reason not to reveal the incriminations now would be to keep as many Serbs as possible insecure and, as a result, many of them would hopefully leave Croatia. Another reason would be the current strong international presence."

17. So that is an oblique reference to hidden lists of persons who would at a future date be prosecuted wrongly for war crimes.
18. At paragraph 24 Judge Karphammer says this, among other things:

"One senior judge in Osijek County Court commented on the cases to me as follows: `We would never bother ordinary, simple people like these, if only President Slobodan Milosovic would extradite the real war criminals, or the [International Crimes Tribunal for the former Yugoslavia] would do their duty in a quick and efficient way. Common Croats demand retaliation now and someone has to be sacrificed -common people need to see that we act.

Judges, prosecutors and lawyers have stated to me that the judiciary is not independent in cases where there is a political or ethnical interest in the ruling HDZ Party of Croatia."

19. At paragraph 41 Judge Karphammer concludes that:

"In addition to the points made above concerning the Amnesty Law etc which I believe oppose the Secretary of State's statement under this point, I would add that not one of the amnestied 13,575 persons (referred to by the Secretary of State) can feel secure that they will not be charged in the future."

20. That report, as Mr Blake properly accepts, was written during the regime of President Tudjman, who died in December 1999. Following elections in Croatia, the former opposition parties are now in power.
21. The next document to which Mr Blake referred us was the Home Office Bulletin 3/00. Here I will read paragraphs 4 to 7. Mr Blake particularly relied on paragraph 4, which is headed "Ethnic Serbs from Eastern Slavonia":

"In September 1999 Denmark sent a fact-finding team to Croatia to examine the situation of ethnic Serbs in Eastern Slavonia. In the light of their report to the Council of Europe, Denmark has rejected almost all the asylum applications submitted by ethnic Serbs."

22. There are further paragraphs, as I have indicated, to which Mr Blake did not, I think, refer us, but which are relevant. Paragraph 5 is headed "Returns":

"According to UNHCR, since 1995 some 65,000 Croatian Serbs have returned to their homes in Croatia. Between 1 January and 15 March 2000 the number of returning Serbs (2,300) has been significantly higher than usual for this time of year. Part of the reason for this increase has been the policies of the new Croatian Government."

23. Of course, I should observe that it is not clear which, if any, of the returning Serbs have returned to Eastern Slavonia. The number is given for Croatia as a whole.
24. In paragraph 6 it is said:

"It has been confirmed that no Eastern Slavonian Serbs will be summoned for military service this year [2000]."

25. Then, under the side heading "Line to take", it is said:

"In an interview in February, the Head of the OSCE Mission to Croatia suggested that he did not expect any problems with regard to the return of Serbs to Croatia. This opinion is in marked contrast to that expressed in the OSCE `expert opinion' referred to in Bulletin 4/99."

26. Then the important concluding sentence reads:

"In view of this and all the above factors, it is most unlikely that ethnic Serbs could now substantiate a claim for asylum."

27. The next document to which Mr Blake referred us was the report by Mrs Savic, which I have already briefly mentioned. Mr Blake fairly accepted that this report was not written by a person in an organisation such as OSCE, but by a firm of solicitors acting on behalf of a number of applicants. Nonetheless, he says that it contains important evidence as to the position in Croatia. I note from the second page of the report that Mrs Savic held a number of meetings in the course of her visit with a number of important persons and bodies. These included a representative of the Helsinki Committee for Human Rights in Croatia, Mr Lalic, the President of the Serb National Council and the leader of the Serb Democratic Party. She also had unofficial meetings with OSCE staff.
28. The summary and conclusion of her report is on page 3 of the document. She refers to the change of government and then says that, while that change is much welcomed by most of the people to whom she had spoken:

"... the unanimous feeling is that there has been no change on the ground to date. It is important to note that the Opposition did not win the election in the Eastern Slavonia region - HDZ maintained majority votes. Further, the change in Croatia has only taken place at the national Government level. Local authorities, on the whole, remain under the control of the former HDZ ruling party. Local elections are not scheduled until November 2001."

29. She then refers to the failure of the previous government to respect the rights of the minority population, so that people could return to their homes. She refers to the fact that the former government had promoted extreme nationalism and ethnic hatred. She continues:

"It is not possible for the new government to bring about effective change in such a short period of time, against the above background and while HDZ still control most local authorities. This conclusion is confirmed by every representative and person spoken to in the course of this visit. It was, perhaps, best expressed by Mr Lalic of the Croatian Helsinki Committee:

`There is a pyramid of power, a change has occurred at the top. We have changed one man and a few ministers. The base remains the same. There is no change in Vukovar and we will not know whether there will be real change until the local elections have been carried out.'"

30. She refers to some statistical information in her report provided by UNHCR Osijek to confirm that a total of 30,944 Serbs have returned to their homes from the Danube region, and of this total only 1,817 have been assisted by the Croatian Government Office for Refugees and UNHCR. Unfortunately, she says, the statistical survey does not indicate how many of the 47,505 Croatian returnees have been assisted by the Government and UNHCR. It is submitted that the statistical information supports the contention that Serbs are not receiving reconstruction assistance or assistance from the Property Commission.
31. She refers in her report also to a number of incidents, three in all, in which Serbs have been set upon and attacked and have died as a result of their injuries. These seem to have involved about six people in all. The incidents took place in the first four months of 2000.
32. In paragraph 25 of her report she refers to the hidden lists of war criminals. She says this:

"There was also evidence of `hidden lists' of war criminals. It is believed that the Croats are awaiting the departure of the international community before circulating these lists more fully. One case concerns a man who continues lives in Croatia. On 10/3/97 he obtained Croatian documents through UNTAES. On 11/3/97 war crimes charges were brought against him. No documents were served on him despite the authority's knowledge of his whereabouts. He learned of the charges when his wife attempted to gain access to their home in former Sector South. The house is occupied by an ethnic Croat and she was not allowed access. When she attempted to raise the matter in court, she was informed that there were outstanding charges for war crimes against her husband."

33. The next document to which Mr Blake referred us is the important e-mail from Miss Daniel. I have explained the position held by Miss Daniel. The e-mail is dated 7th June 2000 and is addressed to her London colleague. She says this:

"I have read the report [of Mrs Savic]. I believe it reflects accurately the situation at the moment when Mrs Savic gathered the information. Discriminatory legislation is however undergoing changes every day, as you can see from the enclosed reports. In a way I believe we are in a bit of a tricky situation. On the one hand, UNHCR is promoting voluntary return to Croatia within the region from FRY Bosnia etc. To facilitate the process we are involved in numerous working groups to push for changes in the legislation and for the elimination of discriminatory practices, many of which are detailed in Mrs Savic's report. Changes are beginning to take place at the level of central government and through the parliament. These, and the tensions caused, are also exemplified in the enclosed reports. There are still political forces opposed to these changes and there is a gap between the Government's official position and the reality at the local authority level. While changes are taking place at a rapid speed at the high levels, such changes are not trickling down at the same speed. Because of this gap I feel that we need to continue with a cautious attitude in relation to the return of Croat Serbs currently benefitting from international protection. The host governments have nevertheless begun to put more and more questions regarding the return to Croatia and I am liaising with OCM Croatia for the preparation of a note to address protection for Serbs. I have to add that OCM Zagreb forwarded the report to Osijek's Office for their comments. I shall forward them as soon as I receive them."

34. Finally, Mr Blake took us to the OSCE report dated 3rd July 2000. At paragraph 8 this report states:

"However, the effects of sweeping changes at the central level have been tempered by a lack of significant shifts at the local and county levels in the war-affected areas where the former ruling party remains the strongest party in power. The still slow pace of refugee return and repossession of property can be explained in part by this fact. Change in the political environment in the field will depend on the outcome of the nationwide local elections to be held by spring 2001."

35. At paragraph 37 the report states:

"The Mission notes positive statements and initiatives taken at the central level regarding the return process, including a Government proposal to the Stability Pact in February 2000 for funding the return of 16,500 Serb refugees to Croatia. However, the repossession of property, access to reconstruction assistance and the as yet unaddressed issue of lost occupancy/tenancy rights remain significant obstacles to the return of Croatian Serbs. While repatriation movements continue, sustainable return remains elusive. Many Croats from BiH and the Federal Republic of Yugoslavia (FRY) View the new Government's increased focus on return as a threat to their interests. This is especially true for those who are temporarily occupying houses belonging to ethnic Serbs who have returned or intend to return. Such attitudes, bolstered by a lack of political will among some local authorities, are likely to obstruct stable return if they are not countered more strongly from the central level."

36. Paragraph 41 of the report notes:

"Field monitoring indicates that a considerable number of individuals returning to their pre-war homes subsequently depart. Some return only to settle their affairs prior to leaving again. For those wishing to remain, reasons for the lack of sustainable return include inability to repossess property or obtain reconstruction or other forms of assistance, inadequate infrastructure (e.g. utilities, schools) and economic reasons. It also seems that the bulk of sustainable returns have been `easy cases' - meaning returns to vacant homes or family reunification. The remaining potential returns will be more difficult to achieve because they will entail resolution of issues such as property repossession, alternative accommodation and reconstruction assistance."

37. Finally, paragraphs 47 and 48 are two important paragraphs which I must quote. Paragraph 47 reads:

"Implementation of the Law on Amnesty: While there has been little change in the implementation of the 1996 Law on General Amnesty, the Ministry of Justice established a Working Group in May 2000 in order to address associated problems, thus for the first time acknowledging the importance of this issue. The Minister of the Interior stated in June that the police would not arrest returnees for mere participation in the armed conflict. Requests to the competent courts for review of several cases that were reclassified as war crimes following earlier amnesty decisions have not been successful to date, contributing to a climate of insecurity for prospective returnees."

38. Paragraph 48 reads:

"Domestic War Crimes Prosecution: Under the former Government, serious doubts existed about the impartiality and fairness of war crime trials in Croatia, contributing to slow return and departures of ethnic Serbs. In their public statements, senior officials including the President, the Prime Minister and the Minister of Justice have repeatedly rejected notions of collective guilt. Since the new Government took office, there have been three war crimes-related arrests throughout Croatia. The precise number of war crimes convictions reached in absentia since 1999 in Croatia remains unknown, which is a source of uncertainty for potential returnees. Although war crimes arrests of recent minority returnees from abroad have occurred, the numbers have decreased in comparison with last year. In this context, the Minister of Justice has recommended to the State Prosecutor that county prosecutors should consider reviewing pending war crimes investigations and indictments. The Mission remains concerned that some returnees may be faced with war crimes charges despite receiving clearance from the Ministry of Justice that there are no charges pending against them."

39. Those, then, are the reports to which Mr Blake took us. On the basis of this material, Mr Blake submitted with cogency as follows. Take first the fact that the appellant is a former soldier: he must be treated as a high risk target. Look at the United States country report and the report of Judge Karphammer: there were, therefore, well-founded fears of persecution in the last two years. Look next at the up-to-date evidence on the local position: and he took us through the reports which I have summarised above. In the light of this evidence, he submits that it was too soon to conclude, to the lower standard of proof, that the risk of persecution on return was ill founded. In any event, the way the tribunal dealt with the point is too brief and they needed to set out in more detail their response to the evidence. They had committed an error of law in their approach to it. I will set out the material passage in a moment.
40. Mr Blake amplifies his submissions in this way. He submits that, where the situation for a returnee is one which is continually changing, the tribunal must adopt a cautious approach in order to guard against the catastrophe that a returnee is faced with persecution. One cannot be satisfied that a fear is not well founded unless: first, the evidence is substantial; second, there is a consensus among observers that the fear is not well founded; third, the evidence relates to the specific location to which the returnee is to be returned (and here it is accepted that the appellant can only return to Eastern Slavonia); and fourth, the evidence must be broad-based and it must cover all aspects of the appellant's concern. Here, in this case, the appellant's concern was particularly with the judicial system and the prosecuting authorities. There is also an expression of concern about housing but, very fairly, Mr Blake does not focus on that as his primary case because it is clear that the appellant had been living with his mother, who has retained her house, and that his sister too has retained her house. Indeed, the facts as found by the special adjudicator were that he had had a job before he left Eastern Slavonia.
41. I now turn to the material passage in the determination of the tribunal which has been the subject of detailed criticism and analysis by Mr Blake. The relevant and important paragraphs are 29, 30 and 31. I will read them all together, but I will then come back to focus first on paragraph 29:

"29.It seems to us that this sense of optimism has been borne out by what has subsequently taken place. Of course all is not yet perfect and of course there will still be specific cases where the particular facts require extreme caution to be exercised. However it is our view, on the evidence now produced, that the change of policy as set out in Bulletin 3/00 is justified particularly for those such as this appellant who has not demonstrated that he has suffered past persecution, as found by the Special Adjudicator. We cannot accept that the UNHCR would be actively promoting and encouraging the return of ethnic Serbs to Croatia were it to be otherwise or were the submission that the reforms have not yet trickled down sufficiently at local level to be made out. We note that the e-mail produced from Maricela Daniel accepted that the report of Ms Savic was accurate at the time the information was gathered. Whilst she notes that UNHCR are promoting voluntary return to Croatia she underlines the necessity to continue to push for the legislative changes which are beginning to take place. She remarks upon the need to act with caution whilst the Government's official position becomes reality at a local level. Caution is always required however when considering applications for political asylum. That caution does not, in our view, and on the evidence we have set out, displace the general proposition that now the majority of Serbs, whose situation in the past, whilst being both sad and tragic, does not disclose any outstanding allegation over and above the horrors of the general situation that existed at the time of the conflict, may be safely returned to Croatia without encountering undue problems.

30.The Savic report mentions `hidden lists' of war criminals of those who have served in the Serbian army. It records that it is believed the Croats are awaiting the departure of the international community before circulating these lists more fully. There is however no evidence on the issue which relies on allegations of rumour. ...

(I need not read further from paragraph 30 because the balance of the paragraph was not relied on on this appeal.)

31.We do not accept that a man such as the appellant who served his ordinary military service engaged in guarding his village would appear on a `hidden list' of those wanted as war criminals even if such lists exist, which is by no means certain."

42. Since I have mentioned that the tribunal found support in the approach of the UNHCR, I should refer to paragraph 32, at the end of which they say that they are fortified in their overall decision:

"... by the very positive approach being taken by UNHCR, who are an impartial and humanitarian organisation, who are actively pursuing and promoting the return of Serbs to Croatia where monitoring by the international community remains."

43. In paragraph 29, it is to be noted that the tribunal rejects the submission that was being made to them that reforms have not yet trickled down sufficiently at a local level to be made out. I will refer to that, if I may, as the "no sufficient trickle down" point.
44. The way Mr Blake puts the case to us today is that it is simply not open to the tribunal to reject the "no trickle down" submission in the light of the evidence that was before them as to the position in Croatia. He has a modified form of that submission as well. He submits that, on a proper approach to risk, the tribunal could not say that the fear of persecution if the appellant were to be returned was not well founded. He submits that no reasonable tribunal could have reached the conclusion that they did: that is, to reject the "no trickle down" submission.
45. Further, as I have already indicated, he goes on to submit that they failed to explain their conclusion. In this regard he has referred the court to the Court of Appeal decision in Karanakaran v Secretary of State for the Home Department [2000] INLR 122, and particularly to a passage at p.147, where Brooke LJ said as follows:

"Unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision-maker has no real doubt that it is entitled to disgard some point from its consideration altogether, it would be wrong to eliminate that point completely. In my judgment, the Tribunal's technique in Sayandan of evaluating both the likelihood of a risk eventuating and the seriousness of the consequences if it were to eventuate demonstrates a correct approach. It was also correct for it to assess the cumulative effect of the matters it was considering, particularly if there was a likelihood that they would all affect the applicant at the same time. ...

The fact-finder must be careful, however, to evaluate each of the considerations suggested on behalf of the applicant. In my judgment it was completely wrong for the Tribunal in the present case to dismiss considerations put forward by experts of the quality who wrote opinions on this case as `pure speculation'."

46. Those observations are directed specifically to a situation where the tribunal in fact rejects evidence. That, of course, was not the position in this case. Rather, Mr Blake relies, I think, on the more general proposition that the tribunal must take on board each consideration and deal with it.
47. In addition, Mr Blake relies on other determinations by the tribunal that returning Serbs have a well-founded fear of persecution. He relies on a number of these cases and says that it could not be the case that this tribunal could reject the "no trickle down" submission when it was recognised in other cases decided in a short period before this one that Croatian Serbs had a well-founded fear of persecution if they were returned.
48. As regards this point, it seems to me that each of the cases must be considered upon it own facts, and that it would not be open to the tribunal in this case to decide the matter differently from the way in which the evidence required simply because of a decision in another case. Of course, it is undesirable that there should be a series of cases dealing with persons from the same ethnic group and from the same country which come to different conclusions, but in my judgment that cannot of itself be a ground of appeal, though it may lead to other courses of action.
49. Spelling out his submission, Mr Blake put it this way. He said that the tribunal should have referred specifically to and dealt with the following matters: first, that in Eastern Slavonia the HDZ was still in power locally; second, that whether life in Eastern Slavonia has changed will depend on whether the HDZ remain in power locally; thirdly, that the national government's measures for non-discrimination were meeting local resistance; and fourthly, that there were areas of concern in relation to discrimination against Serbian soldiers and the distribution of social resources. Those are all matters which Mr Blake submitted should have been specifically referred to and dealt with by the tribunal.
50. He makes a separate submission on paragraph 30 of the determination. He says that it was not open to the tribunal to conclude that there was "no evidence on the issue". That is a quotation from the third sentence. He says that the tribunal should have had regard to what had been said by Judge Karphammer in the extract I have read and also what was said by the OSCE in the July 2000 report. It was not a matter of speculation. There was evidence to support the existence of hidden lists.
51. Mr Waheed (who did not appear below, but who has appeared in this court as Mr Blake's junior) followed Mr Blake. He helpfully drew attention to a decision of the Immigration Appeal Tribunal in Rajnic, in which the Immigration Appeal Tribunal had before it the evidence of Mrs Savic and in which they allowed an appeal from the special adjudicator's determination that there was no real risk of persecution. He also helpfully referred to the cases of Jovanovski and Cica, in which the special adjudicators had relied on Mrs Savic's report. In addition, Mr Waheed drew attention to the fact that the appellant was at specific risk because he had formerly been a soldier.
52. The respondent has been represented by Miss Lisa Giovannetti. In her skeleton argument she has referred to the case of Sijakovic, a decision of the Immigration Appeal Tribunal in March 2001. She says in her skeleton argument that material that has been put before the court may not represent the complete picture. However, as regards this contention, I have accepted Mr Blake's submission to us that we should not rely on this decision in any way because it refers to evidence which was not before the tribunal in the present case; and I, for one, have put it out of my mind and not taken it into account in my determination of this appeal.
53. The question on this appeal is, of course, whether the Immigration Appeal Tribunal committed an error of law and whether this court should accede to the submission that the determination should be set aside and the case remitted for a fresh hearing.
54. In her skeleton argument Miss Giovannetti submits that the Immigration Appeal Tribunal's finding as regards the hidden lists is not susceptible to review and that, likewise, the Immigration Appeal Tribunal's conclusion that the appellant was not at risk of persecution if returned is also not susceptible to review. The Immigration Appeal Tribunal considered all the relevant material and submissions and was satisfied that the majority could now be returned.
55. She amplifies her written submissions by reference to Karanakaran (supra), which emphasises that the tribunal must evaluate all the evidence placed before it and that it is a process of evaluation for it to carry out. The particular passage is in the judgment of Sedley LJ at p.154, where he states as follows:

"I would put my own view, in summary, as follows. The question whether an applicant for asylum is within the protection of the 1951 Convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statue and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in ... Ravichandran v Secretary of State for the Home Department; Rajendrakumar v Immigration Appeal Tribunal; Secretary of State for the Home Department [1996] Imm AR 97, 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information would frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and - sometimes - specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues. Finally, and importantly, the Convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now."

56. I now turn to my conclusions. The first point is whether the Immigration Appeal Tribunal erred in rejecting the "no trickle down" submission. Miss Daniel's e-mail stated that there were political forces opposed to the changes and that there was a gap between the government's official position and the reality at local authority level. She said that, while the changes were taking place at a rapid speed at high levels, such changes were not trickling down at the same speed. Because of that gap, Miss Daniel had urged that the UNHCR needed to continue a cautious attitude in relation to Croatian Serbs currently benefitting from international protection.
57. When I return to paragraph 29 of the determination, it seems to me that the tribunal expressly takes into account the evidence that the trickle down was to be regarded cautiously at the local level. In paragraph 29, the tribunal states clearly that they found the submission that the reforms had not yet trickled down sufficiently at local level not to be made out. They state that in the sentence beginning, "We cannot accept that the UNHCR would be actively promoting and encouraging the return of ethnic Serbs to Croatia ..." They say that they reject the submission in the light of the active promotion of the return of ethnic Serbs to Croatia by the UNHCR. The tribunal then refers specifically to Miss Daniel's e-mail, and they note that that e-mail accepted that the report of Mrs Savic was accurate at the time the information was gathered. The tribunal further notes her urging for pressure for legislative changes and the need to act with caution while the government's official position becomes reality at a local level. So the tribunal have clearly digested that evidence.
58. The tribunal then specifically responds and answers the "caution" point by saying that caution is always required, but that it does not displace the general proposition that the majority of Serbs may now be safely returned to Croatia. The submission, as it seems to me, with which they are dealing at this stage is the submission that Serbs should not in general be returned to Croatia. The response which they make to that submission is that they are satisfied that it is now safe for the majority of Serbs to be returned. The particular matter on which they rely in this respect is the attitude of the UNHCR.
59. So, as Miss Giovannetti put it, the tribunal accepted the evidence of Miss Daniel, but simply rejected the conclusion which was sought to be drawn from it: that is, that it was not safe for Serbs to be returned to Croatia.
60. Mr Blake has put it to us that the tribunal should also have referred to the political situation in Eastern Slavonia. But, when one returns to the earlier paragraphs of the determination, it is quite clear that the tribunal had that situation in mind. In paragraph 21, in their summary of the report by Mrs Savic, the tribunal's determination states:

"The opposition did not win the election in Eastern Slavonia and it was reported as being too early to conclude that the change of national government has brought about material change on the ground in Croatia. There has been a long history of ethnic hatred and the government that had been in power for ten years had promoted extreme nationalism. It is reported as being too soon for the new government to bring about effective change and that `the pyramid of power' shows that whilst change has occurred at the top the base remains the same. It will not be known whether such change has taken place until there are elections at local level."

61. The tribunal clearly noted that that was the evidence before them. In those circumstances, when the tribunal deals with the "no trickle down" submission in paragraph 29, it seems to me that they must have had that evidence in mind. Since the "no trickle down" submission originates in Miss Daniel's e-mail and is particularly based on that, it seems to me that they were entitled to deal with it as they did by specifically mentioning what Miss Daniel had said in her e-mail. They did respond to it and, as I say, they accepted the need for caution but held that, in the light of the approach of the UNHCR, it was not sufficient to support a submission that Serbs should not now be returned to Croatia.
62. As I have said, Mr Blake also relied on the distribution of social resources; but, as I think he accepted, there is no evidence that the distribution of social resources in this case amounted to persecution, for the reasons which I have already given.
63. Having come to the end of their response to Miss Daniel's e-mail, the tribunal then turned to the specific case of this particular appellant. The specific feature of this appellant is that he had been one of those who had been conscripted into the army to protect his village. It is at paragraph 30 that the tribunal deal with the particular problems that arise from this feature. The risk is that he might be treated as a war criminal and be subject to trumped up charges and therefore detained. Even if he were ultimately able to obtain his release, he would obviously be prejudiced by being detained, and that would be a form of persecution. If there was a risk that that was what would happen to him, then there would be a reasonable likelihood, as I see it, for the purposes of this case, of persecution.
64. But in paragraph 30 the tribunal turned to deal with that risk on the particular facts of this case. They referred to the evidence that there are hidden lists. They referred to what was stated in the Savic report about those hidden lists. In the third sentence of paragraph 30 they said, as Mr Blake has noted:

"There is however no evidence on the issue which relies on allegations of rumour."

65. Mr Blake, as I have mentioned above, states that that cannot be a correct conclusion, having regard to the Savic report and the Karphammer report. But I agree with what Miss Giovannetti said about the sentence: that, read as a whole, it must mean that there is no hard evidence on the issue, which relies on allegations and rumours. They accept that there is evidence in the form of rumour, but what they are saying is that there is no hard evidence. When one returns to Judge Karphammer's report, it is borne out by his report, because he accepts that what he was told was rumour.
66. So far as the OSCE report is concerned, the relevant parts of that are at paragraphs 47 and 48. Their conclusion, it will be recalled, was that they were concerned that some returnees may be faced with war crime charges despite receiving clearance from the Ministry of Justice that there were no charges pending against them. This is not quite the same point as whether or not there are hidden lists. Their report, it is correct to say, does not actually refer to the existence of secret hidden lists. So that report too does not throw doubt on the third sentence of paragraph 30 of the tribunal's determination.
67. The position which one arrives at, therefore, is that the tribunal's own view was that there was no hard evidence on the question of lists. However, they did go on to deal with the question of whether or not, if there were such lists, there was a reasonable likelihood that the appellant would be at risk because he would be on such a list. This is, of course, dealing with a rather narrower submission than the "no trickle down" submission, because the submission they are now dealing with is one which has been made by Mr Blake to us that the real risk to the appellant is a discriminatory denial of protection through the judicial process, through being the subject of trumped up charges. The tribunal deal with this point in paragraph 31, in which, as I have already said, they say that the appellant, who had served his ordinary military service guarding his village, would not, in their judgment, appear on a hidden list of those wanted as war criminals, even if such lists existed.
68. So far as that conclusion is concerned, in my judgment it was one which the tribunal were entitled to reach. As the extract from Karanakaran states, it was for them to assess the evidence. Having assessed the totality of the evidence, this was the conclusion to which they came: that he would not be on such a list because of his very minor role in guarding his village during the hostilities. As I see it, that conclusion is not susceptible to review; and nor could it be said that, in respect of this issue, the tribunal had not clearly engaged the narrow submission that there was a risk of persecution because of discriminatory denial of the protection of the judicial process.
69. For all those reasons, in my judgment the appeal must be dismissed.
70. MR JUSTICE WRIGHT:I agree and there is nothing that I wish to add to that which has fallen from my Lady.
71. LORD JUSTICE MUMMERY:I agree. The appeal is dismissed.
Order: appeal dismissed; detailed public funded costs assessment for the appellant.