O (H) v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 02 October 2014
• Neutral Citation: [2014] IEHC 494
• Court: High Court
• Date: 02 October 2014

[2014] IEHC 494

THE HIGH COURT

[No. 86 J.R./2011]

O (H) v Refugee Appeals Tribunal & Min for Justice

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

H. O.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

CANADA (AG) v WARD 1993 2 SCR 689 1997 INLR 42 1993 103 DLR (4TH) 1

B (GO) v MIN FOR JUSTICE UNREP BIRMINGHAM 3.6.2008 2008/2/390 2008 IEHC 229

O (T) v REFUGEE APPEALS TRIBUNAL (NOLAN) & MIN FOR JUSTICE UNREP MAC EOCHAIDH 10.5.2013 2013/40/11811 2013 IEHC 258

A (OA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

A (SI) [SUDAN] v REFUGEE APPEALS TRIBUNAL (BRENNAN) & ORS UNREP CLARK 4.10.2012 2012/1/123 2012 IEHC 488

REFUGEE ACT 1996 S2(C)(II)

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 1(F)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 157

REFUGEE ACT 1996 S2(C)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 12

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

EEC DIR 83/2004 ART 12(2)

BUNDESREPUBLIK DEUTSCHLAND v B & ANOR 2012 1 WLR 1076 2011 IMM AR 190 2011 INLR 133 (JOINED CASES C-57/09 & C-101/09)

EEC DIR 83/2004 ART 12

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 14

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 23

BYRNE & ORS v TAOISEACH & ORS 2011 1 IR 190 2010/6/1298 2010 IEHC 353

Asylum - Fear of persecution - Member of political party - State protection in exchange for testifying at criminal trials of former associates - Refugee status - Credibility findings

Facts The applicant is a Mauritian national. He joined the Hezbollah political party in 1994 and worked as the personal driver for the party"s founder, Cehl Meeah and also for the criminal element of the party, L"Equip de Force. On the night of the parliamentary elections in 1996 three activists of the opposition party were shot and killed. The leader of the opposition publicly accused Cehl Meeah of being responsible for the shootings. In December 2000 the applicant made a statement to the police admitting his involvement in the murders; Cehl Meeah was arrested and charged with commissioning his supporters to murder opposition activists. In exchange for the guarantee of State Protection the applicant agreed to be a witness for the prosecution in the trial of Cehl Meeah and numerous other high profile trials of Hezbollah members. The DPP promised him political asylum abroad once the trial was over. While the applicant was granted immunity from prosecution for his involvement in the murders, he was convicted and sentenced to eight years imprisonment for being the driver during the commission of crimes. The applicant was granted early release in 2005. In December of that year, following a change in Government, the applicant and his family were given notice to evacuate the SMF compound and his personal security guards were withdrawn. In a letter to the Prime Minister, the applicant petitioned to have his secure accommodation maintained and/or that arrangements be made for him to have political settlement in a foreign country. Following this petition, the applicant"s accommodation was not withdrawn and his security guards were reinstated. However, the applicant was informed that there were no laws in place in Mauritius for arranging settlement abroad. The applicant was then informed by the DPP that he would be required to testify at future trials of Hezbollah members. From the time of the applicant"s release from prison, he received regular death threats. At the conclusion of the trial the applicant, in fear for his life and given the changed circumstances concerning his security, went into hiding for a number of weeks. He travelled to Ireland via France. The Refugee Applications Commissioner recommended that the applicant should not be granted refugee status. The applicant appealed to the Refugee Appeals Tribunal but the RAT affirmed the recommendation of the Commissioner made in accordance with s. 13 of the Refugee Act 1996.

Held The respondents argued the applicant was inconsistent and vague in relation to when his state protection was withdrawn. They argued there was a significant contrast in terms of consistency in the applicant"s testimony. The applicant contended that to decide against him on the basis that he could not recall the precise date was unfair. The judge held that while it was quite a harsh finding, it was made on the basis of evidence before the Tribunal. It was a finding that the Tribunal Member was entitled to make and accordingly, it was a finding that was made within jurisdiction. The judge said two of the four credibility findings could not stand as they were unsupported by evidence. He ruled that on the evidence presented, the applicant had not disproven the presumption that the State of Mauritius was capable of protecting the applicant and his family. The applicant was protected within the SMF compound from 2000 until his departure for Ireland in 2009. His family continued to avail of that protection, thus there had been no failure in terms of state protection. The judge made an order refusing the reliefs sought and refused to strike down the decision of the Tribunal; yet permitted the applicant to seek judicial review of the decision.

Background

1 1. The applicant's claim for asylum is based on a stated fear of persecution in Mauritius for reasons of his membership of a particular social group, that group being persons who were granted State protection in exchange for testifying in criminal trials against former associates and/or accomplices and whose State protection was subsequently withdrawn.

2 2. In 1992, Cehl Meeah founded the Hezbollah Political Party in Mauritius to represent the island's Muslim minority. In 1994, the applicant joined the Hezbollah and worked as a personal driver for Cehl Meeah. He also acted as a driver for the criminal element of the party, L'Equip de Force. On the eve of the island's parliamentary elections in 1996, three junior activists of the Opposition Labour Party were shot and murdered as they hung up posters in Rue Gorah-Issac. The leader of the Labour Party, Paul Raymond Berenger, believed and publicly accused Cehl Meeah of being responsible for the shootings, which became known as the "Gorah-Issac" murders.

3 3. However, it was not until December 2000, when the applicant made a statement to the police confessing to his involvement in the "Gorah-Issac" murders, that the Hezbollah leader was arrested and charged with commissioning his Party supporters to murder the three Opposition activists. In exchange for the Government's assurance of State protection, the applicant agreed to become a witness for the Prosecution in the trial of Cehl Meeah, and in a number of other high profile trials of Hezbollah Party members. The applicant states that he was told by the then DPP that when the trial of Cehl Meeah was over, he would be put on a plane and be given political asylum abroad. In the meantime, the applicant's family were given an apartment in a high security Special Mobile Force (SMF) compound at Vacous, where the families of the Mauritian State Security Forces resided.

4 4. While the applicant was granted immunity from prosecution for his involvement in the Gorah-Issac murders, he was convicted and sentenced in July 2001 to eight years for being the driver during the commission of crimes, such as stealing cars, theft and dangerous driving. The applicant served his sentence in the Segregation Unit at Beaubassin Prison where he was protected from other prisoners. During his time in prison, the applicant gave evidence in prosecutions against members of the Hezbollah and at the trial of Cehl Meeah. In February 2003, the Magistrate referred Cehl Meeah to the Assizes Court, on the allegations of the applicant, but in October 2003, the DPP withdrew all charges against him. In 2004, the Hezbollah Muslim Political Party was disbanded and Cehl Meeah founded the Mauritian Solidarity Front (SMF) political party.

5 5. The applicant was granted early release in 2005 and returned to live with his family at the SMF compound. In December of that year, following a change in Government, the applicant and his family were given notice to evacuate thecompound at the SMF headquarters and his personal security guards were withdrawn. In a letter to the Prime Minister, the applicant petitioned to have his secure accommodation maintained and/or that arrangements be made for him to have political settlement in a foreign country. Following this petition, the applicant's accommodation was not withdrawn and his security guards were reinstated. However, the applicant was informed that there were no laws in place in Mauritius for arranging settlement abroad. The applicant was then informed by the DPP that he would be required to testify against a Hezbollah General and a member of the Hezbollah Central Committee in a prosecution for arson offences. This case, the Damaree case, did not come to trial until 2009. From the time of the applicant's release from prison, he received regular death threats.

6 6. In and around 2007 to 2008, the applicant's personal security was withdrawn again but reinstated following further petitions. At all times, the applicant and his family were protected within the safety of the SMF compound.

7 7. In January 2009, the applicant was verbally informed that he would have to leave the compound; however, he was not forced to do so, and in fact, he remained there with his family until the end of July 2009. When the applicant was summoned by the Intermediate Court to testify against the Hezbollah General and a member of the Hezbollah...