E.P. (Moldova) v Refugee Appeals Tribunal and Another
|Mr. Justice Barr
|03 March 2015
| IEHC 131
|03 March 2015
 IEHC 131
THE HIGH COURT
Asylum – Immigration & Nationality – Refugee Appeals Tribunal – Appeal against decision of – Refusal of asylum claim – Fear of persecution – Whether the applicant obligated to exhaust all remedies state protection in the country of origin before seeking international protection.
Facts: The applicant sought an order of certiorari quashing the decision of the first named respondent declining the refugee status to the applicant on the ground that the applicant failed to redress his grievance to the Ombudsman's office.
Mr. Justice Barr granted an order of certiorari to the applicant. The Court held that first named respondent erred in law in its findings that the applicant should have explored the remedy of getting his complaints regarding torture, false implications and harassment by the police officers with the Ombudsman's office, in the country of origin. The Court found that though exploration of the state protection mechanism would defeat the claim of asylum but the principle could not be extended to say that it was obligatory for a person to exhaust each and every remedy that was available to him in the country of origin, at the risk of his life.
1. In these proceedings, the applicant seeks an order of certiorari quashing the decision of the Refugee Appeals Tribunal (hereinafter the "RAT") dated 10 th October, 2012, communicated to the applicant by letter dated 9 th 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.
2. The applicant is a national of Moldova. He was born in 1978. After school, he trained as a mechanical engineer at a military college. He married in 2000 and has one son bom in 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; however, 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.
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 20 th 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 14 th 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:
"The applicant did not seek redress from any human rights organisation, for example, the Ombudsman's Office which was specifically set up to deal with human rights issues. The police Code of Ethics issued in Moldova in March 2003 (Appendix B). The 2004 USSD report on Human Rights in Moldova, pages 3 and 4 (Appendix C) states that 'the Prosecutor General's Office is autonomous and answers to Parliament for overseeing criminal charges before a court and protecting the rule of law and civil freedoms'. The applicant failed to seek redress from a number of higher authorities available before leaving his country of origin."
9. The applicant appealed to the RAT, but as a result of the finding under s. 13(6)(c) of the Act of 1996, the applicant was not entitled to an oral hearing on appeal. The Tribunal decision, which is dated 26 th September, 2008, set out in detail what the applicant had said and what documents had been furnished at his s. 11 interviews with the Commissioner. Referring to the COI appended to the s. 13 report, the Tribunal Member found that "there is a comprehensive legislative and institutional framework in place for the combat of corruption. Moldova has embarked on a comprehensive review of its laws and has prepared a series of draft laws on, inter alia, conflicts of interest and decisional transparency". She noted a national strategy for the prevention and combating of money laundering and financing of terrorism, a monitoring group on its implementation, and an action plan approved by the President, together with a draft law on prevention and combating of corruption. She noted that while the applicant had approached the Prosecutor's Office and the courts, he had not made complaints to the Ombudsman's Office.
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...
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