E. O. I. v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 07 March 2014
• Neutral Citation: [2014] IEHC 107
• Court: High Court
• Date: 07 March 2014

[2014] IEHC 107

THE HIGH COURT

[No. 1169 J. R./2008]

I (EO) v Min for Justice & Refugee Appeals Tribunal (McGarry)

JUDICIAL REVIEW

BETWEEN

E. O. I.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND PAUL MCGARRY SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S2(C)(i)

REFUGEE ACT 1996 S2(C)(ii)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11A(3)

Z (AIM) v REFUGEE APPLICATIONS CMSN & ORS UNREP CLARK 7.11.2008 2008/61/12819 2008 IEHC 420

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(B)

E (D) & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP MAC EOCHAIDH 25.6.2013 2013 IEHC 304

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

A (OA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 24.2.2009 2009/2/336 2009 IEHC 93

REFUGEE ACT 1996 S13

SYMES & JORRO ASYLUM LAW & PRACTICE 1ED 2003 PARA 3.37

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 56

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 57

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 58

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 59

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 60

EXTRADITION ACT 1965 S11

SHANNON v FANNING 1984 IR 569 1985 ILRM 385

QUINLIVAN v CONROY & SREENAN; QUINLIVAN v AG 2000 3 IR 154 2000 2 ILRM 515 1999/22/7090

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S3

EXTRADITION (AMDT) ACT 1994 S2

EXTRADITION (AMDT) ACT 1994 SCHED 1

IMMIGRATION ACT 1999 S3

Immigration and asylum – Refugee status – Political offences – Applicant seeking refugee status due to fear of Nigerian authorities – Whether applicant”s subjective fear is objectively justified

Facts: The applicant was a Nigerian national. He applied for refugee status on the basis that he was a fugitive from the Nigerian authorities because he took part in terrorist activity, including kidnapping, on behalf of the ‘Niger Delta Volunteer Force’ (NDVF). In this telescoped hearing the applicant seeks leave to apply for judicial review by way of certiorari from the decision of the respondent, the Refugee Appeals Tribunal, which recommended he not be declared a refugee. The Tribunal had concluded that the applicant was generally credible and had a subjective fear of persecution. The applicant alleged that the Tribunal failed to apply the provision of Regulation 5.3 of the European Communities (Eligibility for Protection) Regulations 2006 and erred in requiring confirmation of his statements by documentary or other evidence when satisfied his credibility had been established. The applicant also argued that because his activities were politically motivated, he should be regarded as a refugee.

Held by McDermott J that, having considered the wide ranging body of facts and circumstances to be taken into account in determining entitlement to protection, including those set out at Regulation 5(1) and (2) of the 2006 Regulations, in terms of the applicant”s fear of his former colleagues in the NDVF, it was reasonable for the Tribunal to conclude that the fear of the applicant was not objectively justified because there was nothing to support it apart from his credible subjective fear. In terms of the applicant”s fear of the Government authorities, the Tribunal, applying Symes & Jorro: Asylum Law and Practice, Lexus Nexis (2003), concluded that the applicant was fleeing prosecution rather than persecution, and that the offences he committed were distinctly remote from political goals and disproportionate to the good sought. This excludes him from the asylum process. McDermott finds that there was no evidence that the punishment for kidnapping was excessive, considering the Nigerian offences to correspond to the Irish offences. The Court is satisfied that the principles applied by the Tribunal in determining the non-political nature of the applicant”s acts were in accordance with UNCR Guidelines.

McDermott J held that the Tribunal applied the appropriate onus and standard of proof in reaching its decision. The Court is satisfied that the applicant is not entitled to the relief claimed upon any of the advanced grounds. The Court recommends that any further objections of the applicant in respect of Nigeria”s criminal law or procedure be addressed under s.3 of the Immigration Act 1999 if deportation is considered.

Application refused.

1 1. This is an application by way of a telescoped hearing for leave to apply for judicial review by way of certiorari from the decision of the Refugee Appeals Tribunal made 2 ^nd September, 2008, confirming the recommendation of the Refugee Applications Commissioner that the applicant not be declared a refugee.

Background

2 2. The applicant is a Nigerian national born on 17 ^th October, 1978, in Benin, Nigeria. He applied for refugee status on 7 ^th August, 2007, on the basis that he was a fugitive from the Nigerian authorities because he took part in kidnappings and other terrorist activity on behalf of the "Niger Delta Volunteer Force" (NDVF). He claimed that having finished school he worked ay a trader, but because business was not doing well, he engaged in kidnapping people to earn a living "just to make ends meet". He operated in his local area. He regarded it as a profession. He claimed to have kidnapped wealthy men or their sons and daughters who were held captive until ransoms were paid. He could not recall how many people he had kidnapped, but he thought more than twenty. If the parents would not pay a ransom, the captives were injured and then photographed. The photographs were then sent to their families. The age of the kidnap victims varied from between 10 years to 25 years. Before taking the photographs he wounded the victims by stabbing them in the arm or leg. These kidnappings were carried out solely for gain. He had a well established criminal career before being invited to join the NDVF.

3 3. The NDVF was an organisation consisting of seven groups which, he claimed, was lighting for the emancipation of resources in the area of the Niger Delta. He was asked to join the organisation because he was a kidnapper. The kidnapped were not killed but were held hostage for the purpose of negotiating their release with the government. He claimed that government officials sometimes paid money and on other occasions negotiated policy improvements in youth employment and development of the area. Victims were released when youth jobs and light and water facilities were promised. He joined the group in November, 2005. He had no official position in it, other than that of "kidnapper". The leader of their group was arrested and the promises unfulfilled. Kidnapping also took place in order to secure the release of their leader. On behalf of the organisation he engaged in kidnapping government officials, oil workers and other foreigners. He said that he left the organisation after his leader was caught, because he was tired of being in the bush. He wanted to get married. He had taken an oath before joining the organisation and the members did not wish him to leave.

4 4. The applicant explained how he had used guns and knives in the course of kidnappings. Victims were sometimes stabbed and guns were fired into the air to frighten them. He used firearms against police and soldiers when they came to rescue captives and claimed that he shot and killed a number of members of the security forces.

5 5. The applicant also explained how he had assisted in the rigging of elections in Nigeria. He assisted a person who had been a member of the government party but had turned against his party by stealing ballot boxes and attempting to rig the election against the government party.

6 6. He claimed that when he indicated his wish to leave the NDVF, he was threatened and told he would be killed by members of the organisation. He thought that they believed he would inform on them to the government. The government were also looking for him. Some members of the organisation paid for his travel out of the country because of the services he had rendered to the organisation.

Section 13(1) Report

7 7. The Refugee Applications Commissioner issued a recommendation that the applicant should not be declared a refugee on 29 ^th November, 2007. It stated that if taken at face value, the applicant's statements would make him a fugitive from justice rather than a refugee and therefore the matter of exclusion from the asylum process for committing serious non-political offences had to be considered. It was determined that s. 2(c)(i) and (ii) of the Refugee Act 1996 (as amended) applied to his case, namely that he was a person in respect of whom there were serious grounds for considering that he had committed serious non-political crimes in Nigeria. It was also concluded that he was fleeing prosecution, not persecution. It was stated that, regardless of the truth or otherwise of his statements relating to hostage taking, extortion, torture, possible murder and electoral fraud, it was clear that he had not presented any information to indicate that he would merit refugee status. His claim that he was sought by former criminal associates in the Niger Delta paramilitary group would not render his claim for asylum valid because his fear was based on an inability to seek protection and...