Decision over Somali asylum-seeker set aside

Neutral citation: (2010) IEHC 143.

High Court

Judgment was delivered on February 3rd, 2010, by Mr Justice John Edwards.

Judgment

The attribution by the Refugee Appeals Tribunal of an incorrect answer to a Somali asylum- seeker, in circumstances where there was no country of origin information on the matter before the tribunal member, was a clear and manifest error and, because it could not be known what weight the tribunal member attached to this matter, the whole decision should be set aside.

Background

The applicant is a member of the Bajuni minority clan from the island of Koyama in Somalia. Country of origin information stated that Bajuni were the object of contempt from other ethnic groups, which had worsened after the collapse of the Siyad Barre’s regime in the early 1990s, when they were attacked by organised Somali clan militias.

The applicant, who was a fisherman, claimed he was forced to flee Koyoma in 2002 following a series of attacks by members of other Somali clans over the previous two years, in which he claimed he was brutally beaten, his wife was raped twice and his house burned down.

He said he fled initially by boat to an island off Kenya and then to the Kenyan mainland, from where he travelled to Ireland via Amsterdam. The trip was organised by an agent, who took his travel documents. He was refused asylum by the Office of the Refugee Applications Commissioner (Orac) and this decision was upheld by the Refugee Appeals Tribunal.

The commissioner considered there were serious issues about the applicant’s credibility. He did not speak the Somali language, did not know the identity of famous Bajuni boat-builders, did not know what wood was used to build boats, did not appear to know that Bajuni fishermen used their boats to ferry passengers and lacked adequate knowledge of the size and population of Koyama.

A language analysis test was carried out. This showed that he spoke only Swahili. Bajuni is a dialect of Swahili. The analyst, who spoke Swahili and English, concluded that the applicant could not be placed within the speech community of Somalia, but most likely belonged within the speech of the northern coast of Kenya or Zanzibar.

The presenting officer for Orac said that given the close trading links between Koyama and other islands off the Somali coast, it was unlikely he would have had no knowledge of Somali.

The applicant sought a judicial review of the tribunal’s decision on the grounds that the language test was fundamentally flawed, in that the analyst had no knowledge of Bajuni, but only spoke Swahili; the tribunal did not have adequate regard to his grounds of appeal; it failed to give reasons for its decision and it breached natural and constitutional justice.

Decision

Mr Justice Edwards said that in relation to the language analysis, no contradictory expert evidence was adduced on behalf of the applicant and the only matter that might arise was the weight to be attached to the report, which was a matter for the tribunal member. In relation to his knowledge of Somali, the applicant had said in his appeal that he was an only child whose father died when he was young and his mother only spoke Bajuni.

He said this was not taken account of in the appeal.

Mr Justice Edwards said the member had expressly stated she took this into account. He said entirely adequate reasons for the member’s decision were given.

A submission was made on behalf of the applicant that where an adverse finding of credibility was made, and where one or more of those reasons was arrived at through an unfair procedure, then the whole of the decision must fall.

In relation to the material used in building boats, Mr Justice Edwards said: “It was a clear and manifest error to confront the applicant with a demand to know with what particular type of wood Bajuni fishing boats are made and to attribute an ‘incorrect answer’ to him in circumstances where there was simply no country of origin information.”

This “incorrect answer” was just one of a series of circumstances causing the member to conclude that the applicant lacked the knowledge in question. It was impossible to know what weight the member attached to each of the reasons given by her.

On this one discrete issue, he concluded that the applicant had shown grounds for arguing that the decision should be set aside.

The full judgment is on courts.ie;

The names of the lawyers in this case were not available.

Source: irishtimes.com