HO v Refugee Appeals Tribunal and Minister for Justice and Equality

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice and Equality
Court/s:High Court
Citation/s:[2014] IEHC 494
Nature of Proceedings:Judicial Review
Judgment Date/s:02 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Asylum, Exclusion Clauses, Persecution, Refugee
Country of Origin:Mauritius
URL:https://www.courts.ie/acc/alfresco/c8cb4296-ba02-49f7-a01e-1a9418e7eab8/2014_IEHC_494_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was a national of Mauritius. He sought asylum in the State and claimed to fear of persecution there from Islamic terrorists. He said that he had been a member of the Hezbollah party in Mauritius and worked as a driver for its leader. He was also a member of its armed wing, L’Equip de Force. He participated in the murder of three junior activists of the opposition Labour Party in 1996. In 2000, he confessed to police, which led to the arrest of the Hezbollah leader, who was prosecuted and put on trial. In return for immunity from prosecution for the murders, he agreed to act as a witness for the prosecution in that trial, on foot of which he and his family received a form of witness protection from the state, being lodged in a secure compound where families of the Mauritian security forces resided. He was, however, convicted and sentenced in 2001 to eight years’ imprisonment for being a driver in connection with various other crimes. In 2003, whilst still in prison, he gave evidence in prosecutions against members of the Hezbollah and at the trial of its leader. Later that year, the prosecution withdrew all charges against the leader, who went on to found another party the following year. The applicant was granted early release in 2005 and returned to live with his family at the compound. In December of that year, following a change in Government, he and his family were given notice to evacuate the compound and his personal security guards were withdrawn. In a letter to the prime minister, he successfully petitioned to have his privileges reinstated. He was then informed by the state prosecutor that he would be required to testify in a trial against two high-ranking Hezbollah members, which did not come on for hearing until 2009. From the time of his release from prison, he received regular death threats. Around the period 2007 to 2008, his personal security was withdrawn again but reinstated following further petitions. In January, 2009, he was told he would have to leave the compound, but he was not forced to do so, and he remained there with his family until the end of July, 2009. In the light of continuing death threats, he declined to testify against the high-ranking Hezbollah members, and their trial collapsed. He then went into hiding for a number of weeks, returning to the compound in August, 2009. In September, 2009, he arrived in Ireland via France on a student visa, and sought asylum on his arrival. He claimed to be a member of a particular social group, namely 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.
The applicants’ asylum application was refused by the Refugee Applications Commissioner and this was affirmed by the Refugee Appeals Tribunal on the basis of lack of credibility and availability of state protection. In addition, the Tribunal found that he was excluded from refugee status on the basis of his participation in the murders of the three opposition activists, pursuant to s. 2(c)(ii) of the Refugee Act 1996, which provided for the exclusion of a person from the definition of a refugee where there were serious grounds for considering that he or she had committed a serious non-political crime outside the State prior to his or her arrival in the State.
The applicant unsuccessfully sought to set aside the decision of the Tribunal by way of judicial review, challenging all three findings made by it.
Reasoning:
Insofar as his challenge to the credibility findings was concerned, he contended that the Tribunal had erred in finding, first, that he was vague and inconsistent about the dates on which state protection was allegedly withdrawn from him and inconsistent about whether it was withdrawn at all; secondly, that his claim to have been evicted from the compound was inconsistent with the fact that his wife and family remained there; thirdly, that his failure to remove his family from the danger he claimed to fear undermined his claimed fear; and, fourthly, that his fear of persecution from Islamic terrorists was inconsistent with his claim to have helped to dismantle their organisation.
The court held that the Tribunal had an evidential basis for all of its findings except the second and fourth ones. It held that he had never claimed to have been evicted from the compound; rather, he claimed that his security detail had been withdrawn. It also held that the Tribunal had laid too much emphasis on his claim to have dismantled the terrorist organisation, noting that former members of it remained at large and would not be well-disposed towards him. It held that the two valid findings were not sufficient to reject his credibility.
On the issue of state protection, the applicant argued that the Tribunal erred in failing to accept that, were he to return to Mauritius, the persons against whom he had testified would kill or seriously injure him or his family. The Tribunal contended that he had failed to discharge the onus on him of proving that state protection was unavailable, relying on the decisions of Canada (A.G.) v. Ward [1993] 2 SCR 689 and GOB v. Minister for Justice [2008] IEHC 229. The court held that the applicant had not provided sufficient evidence that Mauritius was not capable of protecting him. It protected him and his family from 2000 to 2009 and continued to protect his family to the present time. The applicant, moreover, accepted that his family was safe within the compound. In the light of all that, the court held that he had not rebutted the presumption that Mauritius was capable of protecting him.
Finally, the applicant complained that the Tribunal erred in finding that he was excluded from refugee status. The Tribunal had begun its analysis by stating:-
“Lest the Tribunal be wrong in relation to the finding that he (the applicant) would not be at a risk of persecution for a Convention reason, it finds, on a subsidiary basis, that the ‘Exclusion Clause’ applies in this case.”
The applicant argued that the terminology used betrayed uncertainty and that the finding was of such importance should be definitive and that he was entitled to know that it was reached with conviction. The court rejected that basis of challenge.
Secondly, the applicant argued that the exclusion provided for in s. 2(c)(ii) of the Refugee Act 1996 (as amended) should not be invoked in his case because he had served a sentence of imprisonment in Mauritius in respect of some of the charges brought against him and had received immunity in respect of the remainder of them. He contended that to invoke the exclusion provision would amount a breach of the principle of penal law that a person who had been punished for an offence should not be punished twice. He also contended that excluding him from refugee status was disproportionate.
The court noted that the applicant did not contend that his crimes were political in nature. Rather, he argued that they were not of sufficient seriousness to amount to a “serious non-political offence” within the meaning of s. 2(c)(ii) of the Act of 1996. It observed that reg. 12 of the EC (Eligibility for Protection) Regulations 2006 provided that a person was excluded from the definition of refugee status if he or she had instigated or otherwise participated in the commission of the acts or crimes mentioned in s. 2(c) of the 1996 Act.
The court accepted that the applicant had committed serious crimes and that the Tribunal had correctly applied s. 2(c)(ii) of the Act of 1996 to his case. It held that the Tribunal was entitled to have regard to the fact that he had admitted participating in serious criminal activity, including the murder of three people, robbery, and arson. The fact that he received a partial immunity from prosecution and only served five years of an eight year sentence of imprisonment did not mean that the Tribunal was precluded from invoking the exclusion provisions against him.
Decision:
The court therefore severed the defective overall appraisal of credibility and upheld the Tribunal’s decision on the basis that state protection was available to the applicant and, in the alternative, that he was properly excluded from refugee status.

Facts:
The applicant was a national of Mauritius. He sought asylum in Ireland and claimed fear of persecution in Mauritius from Islamic terrorists. He said that he had been a member of the Hezbollah party in Mauritius and worked as a driver for its leader. He was also a member of its armed wing, L’Equip de Force. He participated in the murder of three junior activists of the opposition Labour Party in 1996.

In 2000, he confessed to police, which led to the arrest of the Hezbollah leader, who was prosecuted and put on trial. In return for immunity from prosecution for the murders, he agreed to act as a witness for the prosecution in that trial, on foot of which he and his family received a form of witness protection from the state, being lodged in a secure compound where families of the Mauritian security forces resided. He was, however, convicted and sentenced in 2001 to eight years’ imprisonment for being a driver in connection with various other crimes.

In 2003, whilst still in prison, he gave evidence in prosecutions against members of the Hezbollah and at the trial of its leader. Later that year, the prosecution withdrew all charges against the leader, who went on to found another party the following year. The applicant was granted early release in 2005 and returned to live with his family at the compound.

In December of that year, following a change in Government, he and his family were given notice to evacuate the compound and his personal security guards were withdrawn. In a letter to the prime minister, he successfully petitioned to have his privileges reinstated. He was then informed by the state prosecutor that he would be required to testify in a trial against two high-ranking Hezbollah members, which did not come on for hearing until 2009. From the time of his release from prison, he received regular death threats.

Around the period 2007 to 2008, his personal security was withdrawn again but reinstated following further petitions. In January, 2009, he was told he would have to leave the compound, but he was not forced to do so, and he remained there with his family until the end of July, 2009. In the light of continuing death threats, he declined to testify against the high-ranking Hezbollah members, and their trial collapsed. He then went into hiding for a number of weeks, returning to the compound in August, 2009. In September, 2009, he arrived in Ireland via France on a student visa, and sought asylum on his arrival. He claimed to be a member of a particular social group, namely 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.

The applicants’ asylum application was refused by the Refugee Applications Commissioner and this was affirmed by the Refugee Appeals Tribunal on the basis of lack of credibility and availability of state protection. In addition, the Tribunal found that he was excluded from refugee status on the basis of his participation in the murders of the three opposition activists, pursuant to s. 2(c)(ii) of the Refugee Act 1996, which provided for the exclusion of a person from the definition of a refugee where there were serious grounds for considering that he or she had committed a serious non-political crime outside the State prior to his or her arrival in the State.

The applicant unsuccessfully sought to set aside the decision of the Tribunal by way of judicial review, challenging all three findings made by it.

Reasoning:

Insofar as his challenge to the credibility findings was concerned, he contended that the Tribunal had erred in finding, first, that he was vague and inconsistent about the dates on which state protection was allegedly withdrawn from him and inconsistent about whether it was withdrawn at all; secondly, that his claim to have been evicted from the compound was inconsistent with the fact that his wife and family remained there; thirdly, that his failure to remove his family from the danger he claimed to fear undermined his claimed fear; and, fourthly, that his fear of persecution from Islamic terrorists was inconsistent with his claim to have helped to dismantle their organisation.

The court held that the Tribunal had an evidential basis for all of its findings except the second and fourth ones. It held that he had never claimed to have been evicted from the compound; rather, he claimed that his security detail had been withdrawn. It also held that the Tribunal had laid too much emphasis on his claim to have dismantled the terrorist organisation, noting that former members of it remained at large and would not be well-disposed towards him. It held that the two valid findings were not sufficient to reject his credibility.

On the issue of state protection, the applicant argued that the Tribunal erred in failing to accept that, were he to return to Mauritius, the persons against whom he had testified would kill or seriously injure him or his family. The Tribunal contended that he had failed to discharge the onus on him of proving that state protection was unavailable, relying on the decisions of Canada (A.G.) v. Ward [1993] 2 SCR 689 and GOB v. Minister for Justice [2008] IEHC 229. The court held that the applicant had not provided sufficient evidence that Mauritius was not capable of protecting him. It protected him and his family from 2000 to 2009 and continued to protect his family to the present time. The applicant, moreover, accepted that his family was safe within the compound. In the light of all that, the court held that he had not rebutted the presumption that Mauritius was capable of protecting him.

Finally, the applicant complained that the Tribunal erred in finding that he was excluded from refugee status. The Tribunal had begun its analysis by stating:-

 “Lest the Tribunal be wrong in relation to the finding that he (the applicant) would not be at a risk of persecution for a Convention reason, it finds, on a subsidiary basis, that the ‘Exclusion Clause’ applies in this case.”

The applicant argued that the terminology used betrayed uncertainty and that the finding was of such importance should be definitive and that he was entitled to know that it was reached with conviction. The court rejected that basis of challenge.

Secondly, the applicant argued that the exclusion provided for in s. 2(c)(ii) of the Refugee Act 1996 (as amended) should not be invoked in his case because he had served a sentence of imprisonment in Mauritius in respect of some of the charges brought against him and had received immunity in respect of the remainder of them. He contended that to invoke the exclusion provision would amount a breach of the principle of penal law that a person who had been punished for an offence should not be punished twice. He also contended that excluding him from refugee status was disproportionate.

The court noted that the applicant did not contend that his crimes were political in nature. Rather, he argued that they were not of sufficient seriousness to amount to a “serious non-political offence” within the meaning of s. 2(c)(ii) of the Act of 1996. It observed that reg. 12 of the EC (Eligibility for Protection) Regulations 2006 provided that a person was excluded from the definition of refugee status if he or she had instigated or otherwise participated in the commission of the acts or crimes mentioned in s. 2(c) of the 1996 Act.

The court accepted that the applicant had committed serious crimes and that the Tribunal had correctly applied s. 2(c)(ii) of the Act of 1996 to his case. It held that the Tribunal was entitled to have regard to the fact that he had admitted participating in serious criminal activity, including the murder of three people, robbery, and arson. The fact that he received a partial immunity from prosecution and only served five years of an eight year sentence of imprisonment did not mean that the Tribunal was precluded from invoking the exclusion provisions against him.

Decision:

The court therefore severed the defective overall appraisal of credibility and upheld the Tribunal’s decision on the basis that state protection was available to the applicant and, in the alternative, that he was properly excluded from refugee status.

Principles:

A state is to be presumed capable of protecting its citizens, in the absence of clear and convincing evidence to the contrary. Where the evidence relevant to a protection applicant’s claim shows a willingness on the part of his country of origin to protect him, a protection decision-maker will be entitled to conclude that state protection is available to him.

An applicant who has committed serious non-political crimes in his country of origin may be excluded from refugee status pursuant to s. 2(c)(ii) of the Refugee Act 1996, notwithstanding that he has served a sentence of imprisonment for his crimes in his country of origin. In deciding to apply the exclusion clause, a protection decision-maker is not required to carry out a separate proportionality analysis over and above its assessment of the seriousness of the crimes committed by the applicant, his or her personal responsibility for them, and all the circumstances surrounding them.

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