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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Moisei & Anor v. Refugee Appeals Tribunal [2004] IEHC 153 (14 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/153.html Cite as: [2004] IEHC 153 |
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259/04 THE HIGH COURT
JUDICIAL REVIEW
Record Number: 2003 No.391 JR
Between:
Dumitru Moisei and Valentina Efremov
Appellants
And
Jim Nicholson sitting as The Refugee Appeals Tribunal
Respondent
Judgment of Mr Justice Michael Peart delivered the 14th day of July 2004:
This is an application for leave to seek certain Orders by way of Judicial Review arising out of the Decisions of the Respondent to refuse the applicants' appeal against the Recommendations in respect of each applicant that they should not be declared to be refugees.
Background facts:
The applicants are Moldovan and arrived in this country on the 19th June 2002, whereupon they made applications for asylum. They each completed the usual questionnaire and were each interviewed separately and by different interviewers, but on the same day. It appears from the Questionnaires and the interviews that the second named applicant's fear of persecution arises solely out of the first named applicant's fear, which largely results from his involvement in the military reserves during what is described as the war in the Trans Nestorian Region in 1992. The first named applicant states that he was in the reserves during that conflict and "dealt with weapons together with the other guys." He says that later these weapons were handed over to the military unit. However, in his questionnaire he states that "in 1999 one very influential bandit was shot dead and after this all troubles began. They say that he was killed with one of our guns. Then communists began to persecute me, and asked me where I was during the conflict." It appears from what the applicant stated that this person was killed with a bullet fired from one of the weapons which had been stolen from the military unit to which the applicant belonged and to which the guns had been handed over. It was suggested that the applicant was linked to that weapon and may have been involved in the murder. He was questioned by the police about the theft of weapons in 1992 and released, but that during the questioning they were very aggressive towards him and he was threatened..
Some days later it appears that some people called to his house and they also threatened him that if he did not tell them about the sale of these weapons things would be worse, and that he was beaten badly by them in his house and was hospitalised. He says that they threatened to abduct his son also. He says that when in hospital he made a complaint to the police, but that the same people came to the hospital shortly after that and told him to withdraw his statement to the police, and that these people were connected to the police. He says that he fears persecution from what are described as "bandits" as well as from the communists, who are the party in power. When asked if he reported these threats to the authorities, he said that he did not because "they are connected with the bandits and I was scared.".
The challenge to the Decision of the Refugee Appeals Tribunal is based solely on a finding contained therein that the applicants did not seek assistance from certain non-governmental agencies in Moldova. This is relevant to the fact that the applicants maintain that it was useless to go to the police because they were linked to the bandits, and would not protect them. While the first named applicant had made a complaint to the police about the beating, he had been prevailed upon to withdraw that complaint by the bandits or criminals. He had not sought any legal advice, and had not sought redress through the legal system in any way. A passage from the summary of the evidence contained in the Decision , and of which complaint is made reads as follows:
"On the applicant's release from hospital he decided to leave the country. He stated that he feared for his life. He stated that he could not go to the police because he was not sure of them. He did not report his difficulties to a lawyer or to a human rights organisation. He stated that he did not consider relocating in Moldova because it was impossible. He had a daughter in Ireland and she advised him to come over with the second named applicant…………He did not go to the NGO's in Moldova because he did not know anything about them."
Counsel has pointed out that this statement is simply a summary of the applicant's evidence, and is not a finding as such, and that Mr Nicholson could have gone further and stated that the applicant ought to have known about the NGOs and should have gone to them. There is further reference to this aspect in the section headed "Decision". It is stated therein:
"The applicant stated that he believes that the people who beat him up had a relationship with the police and that this led to his injuries and his detention in hospital. He also believes that these people learned about his statement to the police from the police themselves. If that was the applicant's belief he should have consulted a lawyer. If he believed that a lawyer would not help him he should have consulted one of the non-governmental agencies operating in Chisniu, the capital of Moldova. The applicant's evidence, that he did not know about these organisations is not in my view a valid reason for not making enquiries."
It is this final sentence which is the subject of greatest complaint by the applicants. It is contended that the Tribunal took into account an irrelevant matter, and that the decision is unreasonable. It is contended that to decide that the applicant ought to have sought assistance from organisations whose very existence was unknown to him is irrational, and that accordingly the Decision is flawed.
In my view the Decision must be read as a whole, rather than have one sentence examined in isolation, and on the basis of that one sentence submit that the entire decision is flawed. I will not set out the Decision verbatim, but in summary the Tribunal member at page 4 et seq. Sets out some fats regarding the fact the applicant had given evidence of being involved in the theft of some weapons in 1999, but that he had returned them to the unit; that he worked as a welder and driver in Moldova from 1990 until 2002; that in 1999 he was questioned by the police in relation to the murder of a crime boss, but was released and continued to work; that in 2002 he was further questioned about the murder when the police decided to reopen the investigation, and that he received two more summonses requiring him to attend a police station for interview. Some days later he was beaten up at home and received treatment in hospital, and that while there he made a complaint to the police about being beaten up; that the following day he was visited by the men who beat him up and was told to withdraw the complaint, and that thereupon he decided to leave the country.
On these facts the Tribunal member found that he was not satisfied that the events described amount to persecution, and states that:
"it would appear reasonable that the authorities would want to question every member of the unit from which the weapons had been stolen. Given that the applicant had been a member of this unit it was not unreasonable for the police to question him."
In relation to the questioning of the applicant in 2002 and the beating he says he received from men who called to the house, the Tribunal Member states:
"Again in 2002 when the police reopened the investigation into Mr Rotari's murder, they decided to question the applicant on two occasions, in May and in June. Again the applicant was released and stated that he was beaten up by people who called to his house. The applicant believes that these people were connected to the police. I find this evidence unconvincing. In any event the applicant was taken to hospital where he spent seven days before he decided to leave the country through fear."
I note the findings of the Commissioner in the s. 13 Report and Recommendation at para 1.2.5 thereof in relation to the failure of the applicant to seek possible remedies in relation to the men who threatened him in the hospital:
"The applicant did not seek any redress to his problems following the warning he received in hospital (Q.46 & 59 of the interview notes). The applicant did have avenues of redress open to him if he felt that his human or legal rights had been infringed. He could have sought legal advice, made a complaint to a higher authority in the police, approached public representatives or any of the non-governmental human rights groups operating in Moldova."
That report also concluded that from certain country of origin information:
"it could not be concluded in this case though that the State, government or police condone any form of corruption. The U.S. Country Reports on Human Rights Practices - 2001 notes that despite difficulties, the judicial system operates independent from the government and parliament. In this case the State is engaged in the provision of police services, but it is not engaged in the criminal conduct of others or corrupt police officers."
I am satisfied that the grounds contended for finding the Decision of the Tribunal invalid are not arguable or weighty, and are in the nature of being what I would describe as "trivial" in the sense that the submission is based on a small part of the Decision, and even if, which is not the case in my view, it was not reasonable to say or conclude that if the applicant did not know about non-governmental bodies interested in protecting human rights that he ought to have been able to make enquiries about them, it does not go to the root of the decision. It was only one of a number of things which the Tribunal considered that the applicant could have done, such as the obvious one of going to a lawyer for legal advice. It was just one more potential option open to him. But simply because the applicant said at the interview that he did not know about these agencies does not mean that it would be unreasonable to decide that he could have made enquiries to ascertain if any such existed in the capital of his country.
The applicants have not reached the necessary degree of arguability in respect of their submissions to be permitted to seek judicial review of the Tribunal's decision to refuse the appeals, and I therefore refuse the leave application accordingly in respect of both applicants.
