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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E.P. (Moldova) -v- Refugees Appeals Tribunal & anor [2015] IEHC 131 (03 March 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H131.html
Cite as: [2015] IEHC 131
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Judgment
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Neutral Citation: [2015] IEHC 131 THE HIGH COURT JUDICIAL REVIEW [2012 No. 968 J.R.] BETWEEN E.P. (MOLDOVA) APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL (SITTING AS ELIZABETH O’BRIEN, TRIBUNAL MEMBER) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 3rd day of March 2015 1. In these proceedings, the applicant seeks an order of certiorari quashing the decision of the Refugee Appeals Tribunal (hereinafter the “RAT”) dated 10th October, 2012, communicated to the applicant by letter dated 9th November, 2012. In effect, the RAT decision in question held that the applicant was not entitled to a declaration of refugee status because there was a system of effective State protection available to the applicant in his home state. Background 3. The applicant transferred to another section in a district some 40km from his original posting. This was very difficult as the Colonel refused to sign his transfer request and there were delays in the processing of his application. Bribes were again demanded of him, on this occasion by his Captain, who also demanded that he fabricate a case against an innocent man. The applicant refused and left the police force, fearing that a case could in turn be fabricated against him. 4. For six months, the applicant worked with his father. He then decided to start a small business. As soon as he sought the necessary licences to start this business, members of the police demanded a large bribe for the right to run his business. They said that if he paid, he would not need a licence to open his shop and that they would help him to avoid tax. He was unable to pay the sum of €5,000 demanded and further feared that he was being set up. A series of events then occurred resulting in the applicant being arrested, detained, charged and prosecuted on fabricated public order offences. He was tried in absentia and convicted and received a four-year suspended sentence. He was placed on one year’s probation on condition that he undertook never to return to work as a policeman and not to draw attention to himself. He appealed the conviction, but his registered appeal letter mysteriously disappeared. He and his wife and son then moved some 180km away to his wife’s hometown of K, but after six months, the corrupt policemen located him there, arrested him and brought him back to his original town where he was again detained. It seems that further charges were fabricated at that stage. He realised that his life and freedom were at risk, so in January 2007, leaving his wife and child behind, he drove from his hometown to Moscow where he bought a false passport from an agent. He then travelled by car to Rome and from there by air to Cork, arriving in Ireland on 20th January, 2007. 5. He survived on money sent by his father, but was arrested in June/July 2007, and the GNIB seized his false passport. The GNIB directed him to the offices of the Commissioner, and on 14th August, 2007, he applied for asylum. He attributes the delay in so doing to his ignorance of the procedures that are available under the international protection regime. 6. The applicant submitted a volume of documentation corroborating his identity and his narrative from his university, the police, the Prosecutor, the army and the courts; he also provided documents relating to his plumbing business, his Driving Licence, Birth and Marriage Certificates and his son’s Birth Certificate. He attended for two interviews with the Office of the Refugee Applications Commissioner. The first interview explored his narrative of past persecution and his travel to Ireland, while the second primarily addressed the motives of the police and the avenues of redress open to him. At the second interview, he said that after he approached the Prosecutor’s office and the courts in Moldova, the only other place he could have gone was to the President who was himself corrupt. He said he did not know where else to turn. He was asked whether he had gone to the Ombudsman and he said that, unfortunately, he had not because he heard from his friends that those organisations are as corrupt as the police and by this time he had given up trying to find justice. He said “I have exhausted all the avenues open. The police force was so corrupt that no matter where I go I wouldn’t find justice”. 7. The interviewer stated that COI available to her indicated that the Ombudsman’s Office would be an avenue for redress. The applicant disagreed, saying that the Commissioner’s office did not have the full information of how the Ombudsman could be reached in Moldova, that while the Ombudsman himself may not be corrupt, one has to go through corrupt people before you reach that level, and that the person who accepts one’s complaint to the Ombudsman’s Office would be Moldovan and would not necessarily be an honest person. 8. A s. 13 report issued making a negative recommendation based on a combination of generic credibility findings under s. 11B(b) (failure to explain a failure to apply for asylum in the first safe country); s. 11B(d) (failure to apply immediately upon arrival in Ireland); and s. 13(6)(c) of the Refugee Act 1996 (failure to apply as soon as reasonably practicable after arrival) together with a finding that “State protection and internal relocation was a viable option for this applicant but was not availed of by him”. The Examining Officer stated that the establishment of the Centre for Combating Economic Crime and Corruption (CCECC) in 2002 had improved the Moldovan Government’s record in combating fraud and corruption. It was noted that the applicant had approached the Prosecutor’s Office and had appealed to the courts but it was concluded as follows:
10. It was accepted that the applicant had experienced some trouble in Moldova and did appear to have been harassed by the police. His word that false charges were brought against him was accepted, but it was found odd that he would not have gone to the independent body to complain of the harassment, particularly when the COI appended to the s. 13 report showed that there was in place “what appears, by all intents and purposes, to be a comprehensive legislative and institutional framework for combating corruption”. 11. The Tribunal Member noted that no submissions had been made in response to that comment in the s. 13 report and that no conflicting COI had been submitted to suggest that the Ombudsman was not a proper institution and that the applicant could not have obtained redress. The Tribunal Member anticipated that the applicant might say that he could not obtain redress from the CCECC and that in practice, corruption remains a problem; she concluded that she had “not been presented with any evidence that suggests that there is not in place a system for the protection of citizens against these problems and what may be described as a reasonable willingness to operate it”. She found that he had not explored the avenue open to him and said:
Approach of the Courts to this Issue
In doing so the Court may examine whether the decision can be truly ‘said to flow from the premises’ as Henchy J. put it in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, if not it may be considered as being ‘fundamentally at variance with reason and common sense’.”
3.7 It has often been pointed out that State protection does not mean a State guarantee. No State is in a position, in practice, to guarantee the complete safety of its citizens. The test is as to whether the State, in practical terms, provides adequate protection, in general, in relation to the type of persecution feared. Just as the fact that a State will not be absolved from its obligation to provide such practical protection by having laws which, for whatever reason, are not enforced in practice, similarly a State will not be found to have failed to provide adequate protection because it can be shown that some incidences of the violation concerned have occurred. This latter will be particularly so where it would appear that adequate and appropriate State measures have been taken to deal with such situations or instances as arise.”
Grounds upon which Relief Sought 25. In the present case, in reaching its conclusion, the RAT had regard to the statistics given in COI being the US State Department report:
With specific reference to the effectiveness of the Ombudsman in Moldova, the US State Department report states that according to the Ombudsman’s report released in March, authorities received 6,027 complaints of torture or inhuman or degrading treatment allegedly committed by a Government officials in 2009, representing a significant increase over the previous years (1,075 complaints in 2008, and 1,289 complaints in 2007). In 693 cases, authorities initiated criminal investigations; 208 cases alleging acts of torture; 438 alleging acts of violence and exceeding authority and 47 alleging acts of inhuman and degrading treatment. Of the number of cases under investigation, 383 defendants were convicted. The Prosecutor’s office failed to pursue an investigation in 5,334 cases citing a lack of evidence. Prosecutors completed the investigations and issued indictments in 293 criminal cases. At the year’s end, 400 cases remained pending.” 27. It was submitted by the applicant that the RAT was required to assess a specific fact. The applicant had already been found credible in relation to his version of events and had been found to have made reasonable efforts to seek the protection of his home State. The question for consideration was whether the Ombudsman provided a level of protection against police corruption in Moldova such that the applicant would be protected from persecution. 28. The applicant submitted that the evidence in the country of origin information was unequivocal. There was an Ombudsman, but he frequently failed to investigate allegations of police abuse. It also appeared from the COI that police corruption was a serious problem that was often ignored, or only superficially examined. It was noted that one example of the Ombudsman doing his job was an ongoing investigation into an allegation of a physical beating in a prison. This was delayed significantly and no result was available before the first named respondent. However, that complaint was of a completely different character to the allegations of police corruption, such as were made by the applicant, and it was submitted, therefore, that the COI clearly demonstrated that the Ombudsman was unable to address this issue. 29. It was submitted that instead of dealing with this directly, the RAT abdicated her function by stating that it was not for her to surmise whether the stated reasons for not investigating matters were in fact true or not. It was submitted that by so doing, she refused to carry out an investigatory role and simply stopped assessing the case at the point at which he was required to form a view on the effectiveness of the Ombudsman. 30. The applicant submitted that the RAT then went on to consider whether the Ombudsman could be said to be a functioning Ombudsman. However, they point out that the Ombudsman was not on trial as to whether he was able to investigate generally, such as investigations into allegations of abuse in prisons. What she was required to assess was whether the Ombudsman was able to provide effective protection to the applicant. This was not answered and no assessment of the Ombudsman’s ability to investigate or protect against police corruption was undertaken by the first named respondent. 31. It was noted that the first named respondent concluded that as the applicant “did not give the Ombudsman an opportunity to review his complaint, I cannot conclude that effective State protection was not open to this applicant”. It was stated that this was the exact same finding that had been made in the original RAT decision which was quashed by the High Court. 32. The applicant submitted that the principles in this area were set out in D.K. v. Refugee Appeals Tribunal [2006] 3 IR 368, where Herbert J. held that it was wrong in law to hold that a failure to seek State protection was sufficient to refuse refugee status in itself and that while a presumption of the availability of State protection might apply, this did not absolve the decision maker from considering whether it actually was available where COI was submitted which suggested that it was not available. 33. The applicant argued that, in effect, the first named respondent closed her mind to the issue on the basis that the applicant had not applied to the Ombudsman. However, the applicant had applied for State protection, which was refused, and the applicant had concerns about the Ombudsman, which were backed up by the COI. The fact that the first named respondent noted that had the applicant applied to the Ombudsman and been rejected, it would then be open to her to conclude that he was not afforded State protection, shows that she did not actually consider the availability of State protection and instead simply refused the application on the same basis as she did the first time, namely, that his failure to apply to the Ombudsman meant that she could not consider whether there was a failure of State protection. 34. For its part, the respondent submitted that the Tribunal Member considered whether the Ombudsman was acting “effectively” and found that it was. They pointed out that the first named respondent also had regard to the US State Department report discussed earlier in her consideration of the Ombudsman’s role and functions in Moldova, mentioning particular instances where the Ombudsman had intervened and provoked by its actions, investigations into alleged human rights abuses. In one instance, he was about to bring a complaint against a District Prosecutor, on foot of a complaint by a prison inmate, but his actions precipitated a correction by the Prosecutor of his earlier stance regarding the inmate’s rights. In finding that there was a system of effective State protection available to this applicant in his own home State, the Tribunal Member stated as follows:
36. The applicant submitted that the primary question addressed to the RAT was whether the Ombudsman could provide protection to the applicant as a victim of police corruption and she did not address this question, addressing instead the issue as to the effectiveness of the Ombudsman. The applicant contends that the first question is the correct question to ask and the second question is not germane to the case. It was further submitted that, even in her assessment of the efficacy of the Ombudsman, the first named respondent failed to consider the negative aspects of the functioning of his office, as seen in the COI. 37. The applicant submitted that the finding of the Ombudsman as acting effectively was an unfair finding and one which was based on one view of the COI without reference to the other views. In DVTS v. Minister for Justice [2007] IEHC 451, Edwards J. stated as follows:
Furthermore, justice must not only be done but be seen to be done. There must be transparency in the process. In certain circumstances, particularly in the administrative context, decisions can be taken without reasons necessarily having to be given. In that regard I can think of one example; the Director of Public Prosecutions for good policy reasons does not in general give reasons for his decisions. However, where you are talking about a court or a tribunal which is determining a lis inter-partes and a ruling on a matter of substance as opposed to a matter of procedure is involved, it is, in my view, the duty of such a tribunal to give reasons for its decisions. I think all of that is well established. I don't think I decided anything new in approaching the case on the basis that that was the established law. What we are concerned about in the Simo case primarily - certainly in terms of the question that I have been asked to certify to the Supreme Court - is the way in which the Refugee Appeals Tribunal treated 'country of origin information'. I took the view, and I don't think there was anything new or radical in this, that the Refugee Appeals Tribunal was obliged to consider all of the 'country of origin information' put before it. It is true to say, and I acknowledge that the tribunal member did state that he had considered all of the documents submitted, but he went on to prefer a portion of the 'country of origin information' over other 'country of origin information' relied upon particularly by the Applicant, and he did not give a reason for doing so. This was not a peripheral issue in the case. This was a central issue in the case. In my view, he was obliged to engage in a rational analysis of the 'country of origin information' and justify the preferment of one piece of evidence over another.” 39. The respondent submitted that it was quite appropriate for the Court to have regard to the content of COI available to the Tribunal in assessing whether an issue arises with the manner in which it was assessed by the Tribunal. It was a matter of fact that certain information was before her and that was not disputed. 40. The respondents noted that the facts of the DVTS case gave rise to particular concerns as to the “arbitrary” quality of the Tribunal’s reliance on certain COI, given the range of COI available, and the failure to explain the preference for certain information when other information supported the applicant’s claims. In his judgment, Edwards J. accepted the principle that it is entirely up to the RAT to determine the weight, if any, to be attached to a particular piece of COI. He stated, however, that the Tribunal should not arbitrarily prefer one piece of COI over another. 41. The respondent submitted that that case was distinguishable from the present case, in particular with regard to the manner of the Tribunal’s consideration of COI. The respondent had submitted in DVTS that the Tribunal was entitled to selectively refer to certain information as it was more “up to date”. The Court noted, in its analysis, that the Tribunal had not provided that as a reason for preferring the information referred to and it found that the Tribunal had provided no reasons for preferring certain information over other information:
While this Court accepts that it was entirely up to the Refugee Appeals Tribunal to determine the weight (if any) to be attached to any particular piece of country of origin information, it was not up to the Tribunal to arbitrarily prefer one piece of country of origin information over another. In a case of conflicting information, it was incumbent on the Tribunal to engage in a rational analysis of the conflict and to justify the preferment of one view over another on the basis of that analysis. The difficulty in the present case is that the second named respondent, firstly, does not allude to the fact that the information is conflicting, and secondly, does not give any indication as to why he was inclined to prefer the information contained in the US State Department report on Cameroon 2004, and the UK Fact Finding Mission report 2004, to that contained in the reports submitted by or on behalf of the applicant.” 43. The applicant also challenged the finding of the RAT that the Ombudsman’s power in Moldova equated to the Garda Síochána Ombudsman Commission in this jurisdiction. The first named respondent found that the Ombudsman was not permitted to consider complaints “to be considered by civil or criminal courts”, that it was the same as in Ireland as the Ombudsman was excluded from investigating where the matter “is before the courts”. The applicant submitted that there was a significant difference between complaints that are “to be” considered by the criminal courts and a complaint which “is” before the courts. 44. The applicant points out that this did not go as far as to say that the Ombudsman was effective in those complaints that it dealt with. The first named respondent referred to a complaint made by a prisoner which was still under active investigation and the active visitations to prisons, police stations, etc. none of the which would demonstrate that the Moldovan Ombudsman could provide a similar level of protection against police corruption as the Irish Garda Síochána Ombudsman Commission could provide against garda corruption. 45. The respondent submitted that the COI available to the Tribunal suggested that the Ombudsman had a wide remit in the area of examining complaints regarding actions by public authorities and of alleged human rights abuses. They submitted that the Tribunal Member appeared to have been aware of this, having regard to the content of the US State Department report to which she referred and the examples of intervention which she mentioned in her decision. It would not seem that there was support in the COI for a suggestion that the Ombudsman was prevented from examining complaints that concern extortion, corruption or malicious prosecution or that a lack of specific reference to these matters meant that the Ombudsman would not be in a position to deal with the applicant’s complaints. They stated that it was quite clear from the US State Department report that the Ombudsman would address complaints regarding police and prison service abuse and access to justice. It was apparent from the COI before the Tribunal that such complaints could be received and examined, and where appropriate, referred for appropriate action to another authority, for example, to the Prosecutor’s Office or intervention by the Ombudsman. 46. The respondents submitted that if the Prosecutor did not take appropriate action on foot of a complaint referred by the Ombudsman, anecdotal evidence in the COI suggested that the Ombudsman could bring a complaint against the Prosecutor. Insofar as the applicant claimed that his appeal of the Prosecutor’s decision was lost, this issue might have been referred by the Ombudsman to the court’s administration. In this regard, it was noted that the Amnesty International report submitted by the respondent states:
48. The applicant submitted that the decision of the RAT was permeated with references to it not being open to the Tribunal Member to consider the truth or otherwise of the COI or that she could not rely on the criticisms of the Ombudsman to determine that he was ineffective. In particular, her conclusions that “it is not open to criticise the Office of the Ombudsman as being inept or lacking in power, I conclude from the evidence submitted that the Ombudsman is acting and the office appears to be taking its duties seriously” and that she “cannot conclude that there is a system of effective protection available to the applicant in his own home State” suggests that the Tribunal Member was not looking at the case from the point of view of a proper inquiry into the issue, but was instead imposing an almost impossible burden on the applicant to prove a negative, i.e. the non-effectiveness of the Ombudsman. 49. Notwithstanding this difficulty, the applicant submitted that he had provided abundant COI to show that the Ombudsman was not in a position to protect him from police corruption as such matters were often ignored or superficially investigated. The applicant submitted that there was no COI to suggest that such issues have ever been properly investigated. Yet, the first named respondent found that she could not conclude that effective state protection was not available to the applicant. 50. The applicant had provided evidence that he had made reasonable efforts to seek state protection and that this was accepted by the High Court. That was not an issue in the remitted hearing, yet it appeared to be the first named respondent’s reason for refusing to even consider the applicant’s submissions. Moreover, there was nothing that the applicant could do between the decision of the High Court and the remitted hearing to change this fact. 51. The applicant cited the following portion of the judgment of Cooke J. in OAS v. RAT [2009] IEHC 607:
53. In reply, the respondents submitted that the Tribunal Member did not merely find that she could not conclude that there is no system of effective protection - or thereby applied an incorrect standard of proof. The decision should be read as a whole. Although the Tribunal Member included a statement to that effect, towards the end of her decision, she followed this up with a further positive statement “for the sake of clarity, I find that there is a system of effective protection available to the applicant”. Nor was it apparent from the decision that she failed to include anything in the decision that positively demonstrated that there was an effective system of State protection provided by the Ombudsman. The respondents submitted that when the decision is read as a whole, it was apparent that she reached her conclusions by reference to the evidence (in particular, the COI) before her regarding the functions of the Ombudsman as a vehicle for complaint and redress. 54. The respondents relied on the decision in Kikumbi v. Refugee Applications Commissioner [2007] IEHC 11. In particular, the finding of the Court that the weight of evidence is a matter for the decision maker “once properly admitted, the weight (if any) to be given to any evidence is exclusively a matter for the decider of fact”. 55. The respondents also submitted that the system of protection at issue was not required to provide a guarantee of protection. It was clear from the COI that the Ombudsman can and had in certain instances intervened to provide redress for complainants. Otherwise, the COI essentially stated that the Ombudsman can receive and investigate or examine complaints of human rights abuses by public authorities and refer matters to appropriate authorities with a view to seeking redress. 56. Information was available to the Tribunal that suggested that the Ombudsman was a vehicle for complaint for members of the public in Moldova, including matters concerning activities of the police and matters regarding access to justice, and that a person might reasonably expect that the complaint would be examined and possibly referred to another authority for action. It was submitted that in those circumstances, the aforementioned ground raised by the applicant could not succeed. 57. The respondents submitted that in considering the allegation that the Tribunal Member failed to apply the correct burden of proof, it should be recalled that it is up to the applicant to demonstrate that he is a refugee pursuant to s. 11A of the Refugee Act 1996. It is important that in so doing, he puts forward a coherent appeal. The applicant asserted in his own evidence at interview that those who process complaints to the Ombudsman are “corrupt”, but this was not supported by any of the COI relied on. Insofar as the allegation was made that the Ombudsman makes only “token gestures”, it was submitted that this allegation was supported by an extract from the USSD report that appeared to have been misconstrued by the applicant. Conclusions
61. In the circumstances, I find that the applicant is entitled to an order quashing the decision of the RAT dated 10th October, 2012, and that the matter should be referred back to the RAT for determination of the question by another Tribunal Member |