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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> H.O. -v- Refugee Appeals Tribunal & anor [2014] IEHC 494 (02 October 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H494.html Cite as: [2014] IEHC 494 |
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Judgment
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Neutral Citation: [2014] IEHC 494 THE HIGH COURT JUDICIAL REVIEW [2011 No. 86 J.R.] BETWEEN H. O. APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 2nd day of October 2014 Background 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. 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. 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. 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 the compound 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. 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. 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 Central Committee in the Damaree trial, the applicant decided, in light of ongoing death threats and the fact of the impending withdrawal of his safety at the compound, not to testify against the defendants and the State’s case collapsed. By this time, those who had promised to protect the applicant in 2000, the Prime Minister, the Head of the Crime Investigation Team, the DPP and the Police Superintendent had all been removed from power. 8. At the conclusion of the Damaree trial on 30th July 2009, the applicant, in fear for his life and given the changed circumstances concerning his security, went into hiding for a number of weeks, staying in a storeroom owned by his friend in Vacous. He returned to the SMF compound in August 2009. However, shortly thereafter, on 21st September 2009, he came to Ireland via France. 9. He entered Ireland on foot of a six-month student visa on his passport. He claimed asylum on arrival in the State. The applicant states that he fears that he will be targeted and killed by members of L’Equipe de Force and Hezbollah if he were to return to Mauritius. 10. The applicant filled out a questionnaire and was interviewed by a member of the staff of the Office of the Refugee Applications Commissioner in the usual way. In a report dated 31st November 2009, the Refugee Applications Commissioner recommended that the applicant should not be granted refugee status. The applicant appealed to the Refugee Appeals Tribunal (hereinafter RAT), and in a decision dated 9th November, 2010, the RAT affirmed the recommendation of the Refugee Applications Commissioner made in accordance with s. 13 of the Refugee Act 1996 (as amended). The Credibility Findings
13. The applicant also stated at his interview that at some stage in 2008, his personal protection had been withdrawn. He went to the Vice Prime Minister and the security was put back in place. He also stated that at the beginning of 2009, he was told that after the ‘Damaree’ trial that he would have to leave the compound. However, he did not do so. He stated that after the trial, he found that his personal protection had been withdrawn. He took refuge in a storeroom owned by a friend of his in Vacoas. He then returned to the compound briefly in August 2009, and then fled to Ireland on 21st September 2009. 14. The applicant submits that to hold against him on the basis that he could not recall the precise date in 2008 when his personal security was withdrawn was unfair. The applicant argued that setting aside the effects of trauma and stress affecting accuracy of recollection, it is common cause that a refugee claim should not be decided on the basis of a memory test, because if it were, such test conditions would be strikingly unfair. 15. In response, the respondent stated that the Commissioner had noted that there was a significant contrast in consistency in the applicant’s testimony regarding the criminal events in the late 1990s and the associated court cases, when compared with the account of the withdrawal of his security. It was submitted that this finding was borne out by the material before the Tribunal. The respondent submitted that while the applicant took issue with the finding of the Commissioner regarding dates in his notice of appeal, he did not specify which dates he was relying on as being correct. The respondent submitted that this finding was made within jurisdiction. 16. I am satisfied that while the finding that the applicant was inconsistent and vague in relation to when the State protection was withdrawn was quite a harsh finding, it was nevertheless made on the basis of evidence before the Tribunal. It was a finding that the Tribunal Member was entitled to make. Accordingly, it was a finding that was made within jurisdiction. 17. The second issue concerns the following finding:
19. The respondent submits that the applicant stated that he was ordered to leave the compound on a number of occasions. This was supported by correspondence furnished by the applicant. In fact, there is one letter dated 28th December 2005, which relates to the fact that the applicant was ordered to leave the compound. There does not appear to be any letter concerning the direction to leave the compound which was allegedly made in January 2009. The letter of 2009 refers to giving the applicant protection when giving evidence at the Damaree trial. 20. The respondent submits that answers given by the applicant at his interview were open to the interpretation reached by the Tribunal. In particular, the respondent drew attention to the following answer which was given at the interview:
23. I am of the view that there was not sufficient evidence for the Tribunal Member to reach this finding. When the applicant referred to the withdrawal of protection, it was clear that he was referring there to the removal of his personal security guards. The applicant never stated that he and his family had been actually evicted from the compound. Accordingly, it was irrational for the Tribunal Member to reach the conclusion that the fact that the applicant’s family continued to live in the compound contradicted any assertion by the applicant that he had been evicted from the compound. This credibility finding cannot stand. 24. The applicant also takes issue with the following finding:
26. The respondent submitted that the applicant’s account that the protection ceased completely because of a change in Government was contradicted by the respondent’s own narrative, which was to the effect that he petitioned the new Government and the protection was reinstated. 27. It may be that the word ‘completely’ can be interpreted in a number of ways. However, I am of the view that there was evidence on which the Tribunal could reach the conclusion that it did. Accordingly, this finding in the decision should not be disturbed. 28. The applicant took issue with the following finding:
30. The respondent submitted that the Tribunal was entitled to find that as the applicant claimed that the force had been dismantled by the State with the applicant’s assistance, that this was at odds with his claim to have a continuing fear of the Force. 31. I am satisfied that the applicant’s objection in relation to this credibility finding is well-founded. While the Force might have been dismantled as an entity, there would be previous members and relatives of those imprisoned, or those who had committed suicide, who would not have been well disposed towards the applicant. It was entirely reasonable that he should have a continuing fear of them. The finding of the Tribunal on this aspect was irrational and cannot stand. 32. The applicant takes issue with the following finding:
34. The respondent submitted that the Tribunal relied, not only on the fact that the applicant left without his family, but also on his apparent composure in that regard. The applicant stated in the s. 11 interview that he was the main character or main target and that the Force were looking for him first. When informed that the authorised officer failed to understand why he left his family there at risk, he replied “just to look after my life”. The applicant also stated that if he had stayed it would have been worse, that he would have been killed in front of his own children. When asked directly whether his family were at risk while he was in the State, the applicant replied “I don’t have any idea”. 35. The respondent submitted, therefore, that the Tribunal was at least arguably entitled to have formed the conclusion that the applicant’s failure to try to remove his family and his equanimity thereto was incongruous with his claim. In his affidavit, the applicant had stated that his family were safe and remained in the SMF compound. 36. While this was far from being a central finding on credibility, there was evidence that while the applicant had feared revenge attacks at the hands of those who he had helped to imprison and/or their relatives, he was nonetheless prepared to leave his family in Mauritius. The Tribunal was entitled to make the finding that leaving the family behind in Mauritius served to undermine his claim that he and his family were under threat from the former Hezbollah members. The Tribunal was entitled to reach this somewhat peripheral finding on credibility. State Protection 38. The applicant made the case that on any appraisal of all of the newspaper articles submitted by him, it was clear that the applicant would have many enemies intent on revenge, yet the Tribunal ignored the significant probative evidence supporting the applicant’s fear of persecution if returned to Mauritius, and concluded that the applicant would not be at risk. In the circumstances, it was submitted that the Tribunal failed to take into account relevant considerations. 39. The applicant argues that while he was given State protection in 2005, those against whom he testified have not gone away and remain a threat to his life and safety. However, he maintains that the guarantee of State protection has not continued. It is submitted that in the assessment of his claim, the Tribunal, in error, has failed to recognise that these facts bring the applicant within the Convention definition of a refugee, that being a person who, owing to a well-founded fear of being persecuted for a Convention reason, is unable to avail himself of the protection of his country. 40. The respondent argues that the onus rested on the applicant to prove that State protection is inadequate for him. The respondent relies on the following statement of principle given by La Forest J. in Canada (A.G.) v. Ward [1993] 2 SCR 689:
‘The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking, the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather, it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals…under reference to Professor Hathaway's observation in his book, at p. 105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection’.”
45. I am satisfied that the applicant has not provided sufficient evidence that the State in Mauritius is not capable of protecting him. The State looked after him and his family from 2000 to 2009. They have continued to protect his family from 2009 to the present time. The applicant accepts that they are safe within the SMF compound. In the circumstances, the applicant has not rebutted the presumption that a State is presumed to be capable of protecting its own citizens. The Exclusion Clauses
48. I do not accept this criticism as well-founded. In SIA (Sudan) v. RAT [2012] IEHC 488, Clark J. had the following to say about subsidiary findings:
49. The applicant argues that the exclusion provided for in s. 2(c)(ii) of the Refugee Act 1996 (as amended) should not be invoked in this case because the applicant had served his sentence in Mauritius in respect of the charges brought against him. He received an immunity in respect of the remaining charges. It was submitted that to invoke the exclusion provision would run contrary to the generally accepted principle of penal law that a person who has been punished for an offence should suffer no further prejudice on account of the offence committed. 50. The applicant cited the following from the UNHCR:
53. The applicant relied on para. 157 of the UNHCR Handbook which states:
55. Section 2(c) of the Refugee Act 1996 (as amended) provides that a person is excluded from the definition of refugee where:
(ii) has committed a serious non-political crime outside the State prior to his or her arrival in the State.” 57. The applicant accepted his involvement in the murders, stating “in 2000, I regretted my involvement in these murders and came to the belief that the Hezbollah Party were linked to terrorists and so I went to the police”. The applicant also accepted that he was involved in arson and other offences, including robbery. The applicant was convicted and sentenced to eight years imprisonment in respect of his involvement in these crimes. As noted above, the applicant contends that the crimes were not of sufficient seriousness to amount to a “serious non-political offence”, but he did not contend at any stage that they were political in nature, such that they should be excluded from consideration under Article 1F of the Convention. 58. Regulation 12 of S.I. 518/2006 provides that a person is excluded from the definition of refugee status if he or she has instigated or otherwise participated in the commission of the acts or crimes mentioned in s. 2(c) of the 1996 Act. Regulation 2(2) provides that a word or expression that is used in the Regulations and is also used in the Council Directive shall have, in the Regulations, the same meaning as it has in the Council Directive unless the contrary intention appears. 59. Article 12(2) of Council Directive 83/2004 provides:
(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes . .” 61. The respondent pointed out that a specific question was put to the applicant in the course of the interview in relation to the possibility of exclusion from the definition of a refugee of a person who had committed a serious non-political crime. The applicant responded “I need to say that I was involved, but then I became a volunteer for the State . . .” He also stated, at p. 7 of the interview, that he was a driver for the leader of Hezbollah and that he “drove the leader to the plitical (sic) duties, religious and also on the criminal side. I was aprt (sic) of the team and I drove for them. I was asked to take the oath, I had to work to the L’Equipe de Force, they only do criminal activities”. It was pointed out that this was consistent with the newspaper article, and in particular, with the article in ‘Le Dimanche’ of 5th February 2006, in which the applicant stated that he was part of the team Le Force and that he had not acted under duress. 62. It was submitted that the Tribunal had relied on the applicant having participated in offences of murder and arson. The notes of the Tribunal hearing indicated that the applicant admitted that his role as driver included driving during the commission of crimes and that he was present when the three people were murdered. The judgment of the Intermediate Court of Mauritius, submitted by the applicant, described him as a “hardened criminal” and “a self-confessed accomplice” to arson. The applicant contended, in the amended Form 1 notice of appeal, that the crime in issue was not a sufficiently serious crime for the exclusion to apply and submitted that the consideration of the proportionality of the persecution claimed, with the offence in issue, should be carried out. However, he did not assert that it was political. 63. The respondent has submitted that, undoubtedly, the crimes in question, being the killing of three persons and arson, were serious crimes. As the Tribunal noted, the UNHCR Guidelines on the applicability of Exclusion Clauses provides as follows:
65. The applicant asserted that he should not be denied refugee status since he had already served a term of imprisonment in respect of his offences. The respondent submitted that in Germany v. B and D (C-57/09 and C-101/09), even where a person has been sentenced and served a sentence, this does not preclude the application of the Exclusion Clause. In that case, B had been sentenced to life imprisonment in 1995, and was released in 2002. In the course of its judgment, the Court had regard to para. 14 of the UNHCR Guidelines, wherein it was stated that the factors to be considered in determining whether or not the offence was sufficiently serious included the form of procedure to prosecute the offence and the nature of the penalty. On this basis, it was submitted that the Tribunal Member’s observation that the applicant was wrong in arguing that the crime is no longer relevant once the sentence has been served, was a correct observation. 66. In Germany v. B and D, the Court had regard to the principle of expiation of the offence. This was dealt with in para. 23 of the UNHCR Guidelines in the following terms:
104 In that regard it should be pointed out that the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State.”
110 It is important to note that the exclusion of a person from refugee status pursuant to Article 12(2) of Directive 2004/83 does not imply the adoption of a position on the separate question of whether that person can be deported to his country of origin. 111 The answer to the third question is that the exclusion of a person from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is not conditional on an assessment of proportionality in relation to the particular case.” 70. In the circumstances, I am satisfied that the Tribunal Member acted within jurisdiction in holding that the applicant could be excluded from claiming refugee status on the basis of s. 2(c)(ii) of the Refugee Act 1996 (as amended). Conclusions 72. On the evidence presented, the applicant has not rebutted the presumption that the State of Mauritius is presumed to be 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 continue to avail of that protection. The applicant has stated that they are safe within the SMF compound. Accordingly, I find that there has been no failure of State protection in this case. 73. The finding of the Tribunal that the applicant had committed serious non-political offences while outside the country of refuge, and that in the circumstances, the provisions of Article 1F of the Geneva Convention and s. 2(c)(ii) of the Refugee Act 1996 (as amended) applied, is a finding that the Tribunal was entitled to reach on the evidence. This finding should not be struck down. 74. In the circumstances, I will make an order permitting the applicant to seek judicial review of the decision of the Tribunal dated 9th November 2010. 75. I will make an order refusing the reliefs sought by the applicant and I refuse to strike down the decision of the RAT dated 9th November, 2010. |