State protection findings in Moldovan national’s claim for asylum were flawed

Judicial review – Moldovan national challenging the decision of the Refugee Appeals Tribunal to refuse him refugee status - in the course of his work as a police officer, he became aware of corruption conducted by a named senior Lieutenant - Lieutenant was fired but soon returned to his old job - a Colonel demanded monthly bribes from him to allow him to remain in the force - reported the matter to the District Department of Internal Affairs, and to the Prosecutor’s Office, which refused to register his complaint - transferred to another section - the Colonel refused to sign his transfer request and there were delays in the processing of his application - Captain also demanded that he fabricate a case against an innocent man – bribes demanded – left the police and attempted to set up a business - sought the necessary licences to start this business - members of the police demanded a large bribe for the right to run his business - arrested, detained, charged and prosecuted on fabricated public order offences - tried in absentia and convicted and received a four-year suspended sentence - registered appeal letter mysteriously disappeared - moved some 180km away - the corrupt policemen located him there, arrested him and brought him back to his original town where he was again detained - further charges were fabricated – fled to Ireland – findings of the Refugee Applications Commissioner were such that he was not entitled to an oral hearing on appeal – Tribunal refused his appeal – in judicial review proceedings court held that the findings on State protection were arrived at in error - Tribunal Member had erred in law insofar as she was of the view that the applicant was obliged to exhaust all possible avenues of redress before seeking international protection – case remitted that part of the case for reconsideration - approach of the Courts - presumption of State protection and the obligation on an asylum seeker to seek such protection prior to seeking international protection in the host country – Tribunal member confined herself to an analysis of whether the Ombudsman’s Office was in fact acting effectively and whether it would be reasonable for the applicant to “approach the Ombudsman’s Office with a complaint” - stated that as he did not give the Ombudsman an opportunity to review the complaint, she could not conclude that effective State protection was not open to this applicant – argued that the Tribunal member failed to consider the actual question that the High Court had posed to it, namely, whether the Ombudsman’s Office could provide protection to the applicant - no consideration of the ability of the Ombudsman’s Office to provide protection to the specific applicant was carried out – no consideration as to whether the office can provide effective State protection to him - failed to address the question posed by the High Court which was “whether effective State protection might reasonably be forthcoming to the applicant from the Ombudsman’s Office” - wrong in law to hold that a failure to seek State protection was sufficient to refuse refugee status in itself and that while a presumption of the availability of State protection might apply, this did not absolve the decision maker from considering whether it actually was available where COI was submitted which suggested that it was not available - entirely up to the RAT to determine the weight, if any, to be attached to a particular piece of COI - the Tribunal should not arbitrarily prefer one piece of COI over another - burden of proof – Tribunal failed to answer the specific question put to her by the Court, which was as to whether effective State protection might reasonably be forthcoming to the applicant from the Ombudsman’s Office - required an examination of whether the Ombudsman’s Office was effective in dealing with complaints against police officers accused of corruption - evidence that the Ombudsman’s Office did not initiate criminal investigations in 88.5% of the complaints coming before it – Tribunal held that the Ombudsman’s Office would provide State protection.