EOI v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 107
Nature of Proceedings:Judicial Review
Judgment Date/s:07 Mar 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Asylum application (Examination of an), Burden of Proof, Country of Origin Information, Persecution, Refugee, Refugee Law, Refugee Status
Country of Origin:Nigeria
Geographic Focus:Ireland

The applicant, a Nigerian national, arrived in Ireland in 2007 and claimed asylum.  His application was based on membership of a particular social group, arising out of his membership of the so-called Niger Delta Volunteer Force (“NDVF”). He claimed to have been a criminal in Nigeria and to have specialised in kidnapping, which brought him to the attention of the NDVF, and he was asked to join it, which he did in 2005. He then carried out kidnappings on behalf of the group, targeting government officials and foreign workers. He claimed that he decided to leave the group because its leader had been arrested and the authorities were allegedly looking for him too. He also claimed to fear the NDVF because they were afraid he would reveal information about them to the government. He went to Lagos and arranged to travel to the State.

His application for asylum was rejected by the Refugee Applications Commissioner and this was affirmed, on appeal, by the Tribunal.

The Tribunal considered him to be subjectively credible, but did not accept that he would encounter persecution at the hands of his former colleagues in the NDVF, no country of origin information having been submitted to support the claim that present or former members of that organisation were liable to be targeted by existing members of that group for any particular reason. Any fear of that group was therefore held not to be objectively well-founded.

The Tribunal also was not satisfied that he was a political activist or that his crimes were political in nature. It held that he was fleeing prosecution, not persecution, at the hands of the authorities.

The applicant challenged the Tribunal’s decision by way of judicial review, alleging a breach of reg. 5(3) of the EC (Eligibility for Protection) Regulations 2006 and error in the manner in which it assessed the matter of fear of prosecution. The court upheld the decision.

The court began by considering the first complaint. It pointed out that there were two facets to the issue of credibility, one subjective and the other objective. An applicant for asylum had first to show that he or she had a genuine fear of persecution for a Convention reason. The second element involved assessing whether or not that subjective fear was objectively justified or reasonable, and thus well-founded.

The court upheld the Tribunal’s finding that there was no objective information to support the subjective fear of the applicant in respect of his former colleagues. It pointed out that there was no explanation for the lack of such evidence which, bearing in mind the content on country of origin information on the situation in the Niger Delta, might logically be expected to be found.

Turning to the second finding, the court noted that the Tribunal had found that the norm in civilised countries was that kidnapping or false imprisonment was properly regarded as a criminal offence, and that Nigeria was no different. There was no evidence to suggest that the punishment applicable to the offences committed by the applicant was excessive.

The court observed that if he had committed such offences in Ireland, they would be treated as criminal offences corresponding to the Nigerian offences of kidnapping, false imprisonment, assault and murder. It pointed out that it was well-established that not every person who committed an offence in the course of political struggle was entitled to the benefit of the political exception to extradition, referring to the cases of Shannon v. Fanning [1984] I.R. 569 and Quinliven v. Conroy (No.2) [2000] 3 I.R. 154.

The court also noted that the scope of the offences to which s. 3 of the Extradition Act 1987 applied had been extended by s. 2 of the Extradition (Amendment) Act 1994, and the first schedule thereof, which also provided that the offences corresponding to murder, kidnapping, false imprisonment and assault occasioning actual bodily harm would not benefit from the political exception in relation to extradition to Convention countries.

The court upheld the Tribunal’s conclusion that the crimes carried out by the applicant bore no relationship whatever to the political aim sought to be achieved by the NDVF, and that he was fleeing prosecution rather than persecution.

Accordingly, the court refused leave and upheld the Tribunal’s decision.


An applicant who claims to fear persecution may have a subjective fear. However, in order to be a refugee, that fear must be objectively justified. If an applicant does not adduce evidence to support the existence of objective fear, or if a protection decision-maker is unable to find such evidence, an applicant will likely not be held to be a refugee, particularly if such evidence may be reasonably be expected to exist.


Where an asylum applicant claims to have carried out so-called “political” crimes, in assessing whether he is fleeing prosecution or persecution, it is necessary to consider whether or not the criminal activity carried out by the applicant bears any relationship to the political aim sought to be achieved by the activity. In assessing this, regard may usefully be had to such matters as the UNHCR Handbook and the principles informing the legal definition of the “political exception” as defined by domestic law in the area of extradition.

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