SO v Refugee Appeals Tribunal and Others

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 286
Nature of Proceedings:Judicial Review
Judgment Date/s:11 May 2015
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Persecution, Refugee
Country of Origin:Nigeria
Geographic Focus:Ireland

The applicant was a national of Nigeria, claimed asylum in Ireland and contended that, if returned to Nigeria, he would face court martial and imprisonment for 21 years if apprehended by the army, and/or assassination. He stated that he was a lance corporal in the Nigerian army for many years and that his problems began when he and three other soldiers were ordered by their colonel to remove ammunition from an arsenal. The alarm was raised and he claimed that he was imprisoned for eleven months while an investigation took place. He further claimed that, during this time, two of his accomplices were killed for threatening to disclose the truth about the operation. He said that his escape from prison and travel to Ireland were organised by the colonel.

Having investigated his application, the Refugee Applications Commissioner made a negative recommendation on it, which he unsuccessfully appealed to the Refugee Appeals Tribunal, whose decision he challenged in these proceedings.

The Tribunal was satisfied that the applicant had a military background in Nigeria. However, it made numerous adverse credibility findings against him, considering his claim to have travelled to the State with a passport which contained no photo to lack credibility, noting inter alia his failure to apply for asylum at the frontiers of the State, and holding that it was not plausible that the colonel would have helped him to escape. It further found that he had failed to establish a Convention nexus, and that he appeared to fear prosecution not persecution. It also held that he had failed to provide any evidence to substantiate the claim that he would face life imprisonment; or to identify the relevant provisions of the penal code referable to the alleged offence.

In seeking judicial review, the applicant stated that the manner in which he travelled to and arrived in the State was peripheral to his core claim; that the finding regarding his accompaniment by an agent from Nigeria to Dublin was not so unbelievable as to warrant an adverse credibility finding; that the findings regarding his escape and involvement in the misappropriation of arms were based on conjecture; that the adverse finding with regard to his account of travel was irrational; and that the treatment of the country of origin information was unsatisfactory and based on conjecture.

The court upheld the Tribunal’s decision.

It noted that the Tribunal had rejected every aspect of the applicant’s narrative based on its inherent implausibility. It was not satisfied that any irrationality attached to its findings. It did not accept the applicant’s contention that it was incumbent on the Tribunal to say whether it believed the narrative concerning the death of the applicant’s colleagues in prison. It also held that the Tribunal correctly found that the applicant feared prosecution for the commission of the alleged offence, rather than persecution for a Convention reason. Furthermore, he had failed to refer to any law in Nigeria showing that the potential punishment was excessive or disproportionate to the point of amounting to persecution. It was not sufficient for him to say that the provisions under which he would be punished were not publicly available.

The court therefore upheld the Tribunal’s decision.


Where it is put to an asylum applicant that he or she is facing prosecution and not persecution, then in order to qualify for refugee status, he or she must show that the potential punishment for the crime in question would be excessive or disproportionate to the point of amounting to persecution. It is not sufficient for them merely to contend that that would be the case without evidence to that effect, or by arguing that the provisions under which he or she would be so punished are secret or not publicly available.

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