P (E) [Moldova] v Min for Justice & Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | MS JUSTICE CLARK, |
| Judgment Date | 29 June 2012 |
| Neutral Citation | [2012] IEHC 486 |
| Court | High Court |
| Date | 29 June 2012 |
[2012] IEHC 486
THE HIGH COURT
EUROPEAN COMMUNITIES ELIGIBILITY FOR PROTECTION REGULATION REGS 2006 SI 518/2006 REG 2
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S11B(B)
REFUGEE ACT 1996 S11B(D)
REFUGEE ACT 1996 S13(6)(C)
WARD v CANADA 1993 2 SCR 689
K (D) v REFUGEE APPEALS TRIBUNAL & ANOR 2006 3 IR 368
LLANAJ v REFUGEE APPEALS TRIBUNAL (SHIVNEN) UNREP FEENEY 9.2.2007 2007/35/2167 2007 IEHC 53
RSC O.84 r26(4)
1. The applicant is a national of Moldova. When considering his appeal to the Refugee Appeals Tribunal, the Tribunal Member accepted his recited fear of persecution at the hands of the police but found that the Moldovan State is able to provide effective protection to him and so his appeal failed. Leave was granted to challenge that decision by Cooke J. on 14 th December 2011 on the following grounds:
"The Tribunal member found that state protection against the claimed risk or threat of persecution or serious harm would have been available to the applicant in Moldova by means of a complaint to the Office of the Ombudsman and that the applicant had not given an acceptable explanation for not approaching that office:"
(a) These findings are wrong in law and unsupported by any or any adequate evidence or information that the Office of the Ombudsman has any power or function in the prosecution or punishment of acts of persecution in the sense of Regulation 2 of the ECs (Eligibility for Protection) Regulations 2006;
(b) In consequence the Tribunal member's finding that Moldova had in place an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm was unsound;
(c) The Tribunal member erred in law in effectively placing the onus of proof of the non-existence of such a system on the applicant."
The substantive hearing took place before this Court on the 21 st June 2012. Mr Conor Dignam S.C. appeared with Mr Viv Lavan B.L. for the applicant. Mr Anthony Moore B.L. appeared for the respondents.
According to the applicant, he was born in 1978 and after school he trained as a mechanical engineer at military college. He married in 2000 and has one son born the same year. He joined the police in 2003. His problems began in 2004 when, in the course of his work as a police-officer, he became aware of corruption conducted by a named Senior Lieutenant. He reported the incident and following an investigation the Lieutenant in question was fired but he soon returned to his old job and shortly afterwards a named Colonel demanded monthly bribes from the applicant to allow him to remain in the force. The applicant reported the matter to the District Department of Internal Affairs and to the prosecutor's office which refused to register his complaint, finding that there was nothing wrong with the actions of the policemen involved. He transferred to another station in a district some 40km from his original posting which was very difficult as the Colonel refused to sign his transfer request form 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. He refused and quit the police force fearing that a case could in turn be fabricated against him.
For six months he worked with his father but 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 they would help him to avoid tax. He was unable to pay the €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 any 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 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 on 20 th January 2007. 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 14 th August 2007 he applied for asylum. He attributes the delay to his ignorance of the procedures that are available under the international protection regime.
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. Those documents are not before the Court. He attended for two interviews at the offices of the 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 didn't 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. Police force was so corrupt that no matter where I go I wouldn't find justice." The interviewer stated that COI available to her indicates that the Ombudsman's office would be 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.
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 practical 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...
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