High Court quashes Refugee Appeals Tribunal decision for natural justice breach regarding applicant's answer on fishing boat wood type.

Neutral Citation Number: [2010] IEHC 143

THE HIGH COURT

JUDICIAL REVIEW

2007 1114 JR

BETWEEN/

A.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

AND OLIVE BRENNAN SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

JUDGMENT of Mr Justice John Edwards delivered on the 3rd day of February, 2010.

Introduction

This is an application for leave to apply for an Order of Certiorari and other reliefs by way of judicial review, primarily for the purpose

of quashing a decision of the Refugee Appeals Tribunal rendered on the 31st day of July 2007 and in which the Tribunal Member

affirmed the earlier recommendation of the Refugee Applications Commissioner made in accordance with s.13 of the Refugee Act, 1996

that the applicant should not be declared a refugee.

Background to the applicant’s claim

The applicant claims to be of Somalian nationality, and to be a member of the Bajuni minority clan from the island of Koyama. Country

of origin information establishes that the Bajuni population is scattered across a number of offshore islands off the southern Somali

coast, of which Koyama is one, as well as coastal settlements running south of Kismayo as far as the border with Kenya.

The Bajuni represent the lowest caste and are on the bottom rung of the status ladder in the Somali society and it is generally

accepted that they are frequently the object of contempt from other ethnic groups. Moreover, country of origin information exhibited

by the applicant indicates that after the collapse of Siyad Barre’s regime in Somalia in the early 1990’s the Bajuni began to suffer more

at the hands of other Somali clans and they were attacked by organized Somali clan militias, who wanted to force the Bajuni off the

islands. Attacks became more severe and rape of Bajuni women was common. As the situation deteriorated in the civil war many

Bajuni left Somalia for Kenya, the majority having left during 1992, by which time their position had become untenable - Danish

Immigration Service Governmental Report, 17 Sept 2000.

The applicant claims to have had to flee Koyama in 2002 following a series of incidents of alleged persecution by members of other

Somali clans over the previous two years, and in the course of which he claims to have been brutally beaten himself, his wife raped

(twice) and his house burned down.

Relying on country of origin information suggesting that in recent years many ethnic Somali persons, and also Ethiopians and Kenyans,

have sought to asylum by claiming to be members of the persecuted Bajuni people, and that therefore care needs to be taken in

assessing any such claim, the Tribunal predicated its analysis of the applicant’s claim by outlining the general approach it proposed to

adopt. The tribunal member stated:

“It is accepted by the Tribunal that most Somalis who fled the civil war since 1991 fled by foot to neighbouring states

such as Kenya, Ethiopia and Tanzania. Others took dangerous routes by boat to Yemen, Kenya and Tanzania. Some

Somalis who had ‘family connections’ managed to resettle in 3rd safe countries such as Canada and Sweden. Tens of

thousands of Somalis live ‘illegally in 3rd countries such as Kenya in urban centers where they are at risk from

victimisation by the police. It is becoming much more difficult for Somalis to use neighbouring countries in which to use as

transit points to travel to Europe, North America or the Gulf States. Kenya has two sets of refugees: ‘urban refugees’ who

were illegally living outside the designated UNHCR run camps in places such as Nairobi and ‘encamped refugees’. There are

tens of thousands of illegal urban Somali refugees living in urban centres in Kenya.

Country of origin information confirms that members of minority groups living in the southern region of Somalia may be

subject to persecution at the hands of minority clans. In light of their minority status and the lack of any state authority

they are unable to seek redress to this situation. Therefore an assessment of credibility for all applicants of this profile is

central to any such claim. However, it is noted that much of this information is freely available to Somali applicants as a

result of the close-knit nature of Somali community and the issuing of previous reports.

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status stresses that the importance of

ascertaining and verifying an applicant's identity and nationality becomes much more crucial, relative to the security and

human rights situation in their stated country of origin. Applicants claiming to be from Somalia require this attention. It is

difficult to establish that an applicant is in fact a Somali National and the Tribunal has had to rely on general information

questions to attempt to establish the applicant's nationality. There are no reliable forms of documentation available to

nationals of that state at the moment. It is also difficult to establish any identity on a balance of probability test on the

grounds of language as there are many ethnic Somalis who are not Somali nationals living in neighbouring countries. The

UK Home Office Immigration and Nationality Directorate, Somalia, November 2004 reports that many non-Somali applicants

pose as Somalis in the UK.

Furthermore, when a person claims they are Somali and can speak the Somali language, it does not automatically follow

that they are Somali from a stated area of Somalia or that they were forced to flee for reasons related to their particular

clan. Reliable sources have indicated that aside from being spoken in Somalia, the Somali language is also spoken in

Ethiopia, Kenya and Djibouti are many ethnic Somalis live.”

The section 11 interview

It is appropriate at the outset to consider the basis of the applicant’s claim for asylum as articulated by him in his s. 11 interview. The

applicant claims that he was born on 13/3/1963. Accordingly he was 44 at the date of the hearing before the RAT. He stated that he

had lived all his life in Koyama until forced to flee. He is married since 1990 and has three children, all born in Somalia. He fled initially

by boat to the island of Lamu in Kenya in December 2002 where he stayed for two years, then travelled by boat to Mokowe on the

Kenya mainland, then from there by bus to Mombassa and on to Nairobi from where he flew to Ireland via Amsterdam. He did not claim

asylum in either Kenya or Holland. He says he has never possessed a passport. The applicant claims that he is a fisherman and earned

his livelihood on Koyama fishing on his uncle’s boat. They used to fish all night. He claims that he never at any time visited other

islands near Koyama or the Somali mainland. He could see the mainland but he said he has never visited the port of Kismayo. The

nearest islands to Koyama are Fumaya, Ngumi, Chula, Chovaye and Ndoa. He was unable to say how many people lived in his district

on Koyama. He said there was no police station or city hall on Koyama. He initially claimed there was no police station on any of the

islands. Then when asked specifically if there was one on Kundai Island he replied “Maybe”.

His trip to Ireland was arranged by an Agent in Mombassa. His family traveled with him. He only stayed 3 hours in Nairobi. When they

arrived in Dublin they showed passports. When asked where the passports are now, he said the Agent took them back. He took back

all travel documents.

When asked why he left Somalia the applicant said: “Because of the threats - I did not have no guarantee that I and my family would

be alive the following day.” He added: “ the Somali used to attack us and we could not help and women and wives are being raped

every day and our house was burned down. These are the main things/reasons why I left Kayoma / Somalia.” When asked who was

he afraid of, he replied: “The Hawayie and Darod clans” He claimed “I was brutally beaten, my wife was raped, our house was burned

and there was no place for us to go.” He said these attacks were committed by the Darod supported by the Hawayie people. He

received the beating in 2000, his wife was raped twice in 2001 and the house was burned in 2002. He and his family left shortly after

the house was burned.

The applicant was asked if anything had happened to Koyama in the 1990’s, particularly 1992. He said: “Soldiers attacked us and we

had to flee from our homes -- to whole people. We hit in the woods. We went back after the whole day -- some of them moved away

-- I don't know where they went to.” He was then asked if the period 1990 – 1992 any of his people – Bajuni fishermen - had used

their boats as passenger boats to transport people from ports on the mainland of Somalia such as Brova, Kismayo or Mogadishu. He

replied: “ It could happen as some Bajuni men were captured and boats taken” The applicant was asked if he knew the name of the

refugee camps in Kenya and he replied “Yes, Jumvo”. It was put to him that: “In 1992 most of those fleeing the militia went to Jumvo

- why not you? -- why did you not go then?” He replied :“ I did not want to leave my home.” It was further put to him: “ our

information on Somalia is that before 1992 and particularly in 1992 the Bajuni attacked on the islands by Somalian militia and the

Bajuni fled in 1992 to Kenya -- Mombasa Concepta to the refugee camps there – Jumvo camp - and the 1997 the UNHCR considered

the islands safe and many Bajuni returned to the islands - why were you not in this, among these Bajuni people?” He replied: “I did

not want to leave my home and others took their own decisions and they had regrets when they came back as to why they fled in

the first place.”

The applicant was asked if any of the Somalia militia were living on the islands in 2000/2002. He replied no, that they only visited.

When asked to specify what militia these were he replied: “Darod and Hawayie”. It was put to him that: “Our information on Somalia

and the islands is that the Maharan clan militia attacked the islands in the 1990s and in 1992 and not the Darod and the Hawayie. Our

information also is that the Maharan have recently settled on the islands and the Bajuni work for them as labourers. What is your

opinion on this?” He stated: “The Darod is bigger clan but the Maharan come from the Darod bigger clan. The militia don’t live there

but invade often. They take the fish which we catch.”

He was asked why he didn't claim asylum in Kenya. He stated that the refugee camps in Kenya were already closed and the Kenyan

people do not want “us” (i.e. the Bajuni) to stay there. When asked where the Bajuni people who fled the islands generally live now,

he replied: “Most returned and the ones who did not -- I don't know.” Asked about those who had gone to the mainland, he said

that: “Many live in Kismayo.” It was put to him that they mostly live in the Manley area of the District of Makanga in Kismayo. He

stated: “I heard Manley a lot of times – but I don’t know.” He was then asked if he knew the names of two famous fishing boat

builders from the Kismayo area that country of origin information suggests should be known to all Bajuni. The interviewer stated: “Geel

Xor and Xasan Hashi – do they mean anything to you - these names? ” The applicant replied: “ I have heard of Xasan Hashi -but

that's all. He was a famous Bajuni person. I don't know for what. He was a working man” The applicant denied that he speaks Somali

apart from greetings. It was put to him that he had undergone a language test and that the tester had reported that he spoke

Swahili and that he cannot be placed within the speech community of Somalia. He responded: “Its not correct.” Asked why not, he

stated: “The test – the interpreter was Bajuni – but tester/who done analysis was not a Bajuni person and he picked words similar to

Swahili.”

The Tribunal’s Analysis

The Tribunal’s analysis of the applicant’s claim is set out in part 6 of the decision. The Tribunal member stated:

“6. Analysis of the Applicant’s Claim.

The applicant may well have reasons to fear returning to Somalia, but what this Tribunal must decide, however, is that if

he has such fears, are they well founded fears based on proper Convention grounds?

In assessing any application the tribunal must have regard to the credibility and the coherence of the account given by

the applicant.

It is the applicant's core claim that as a member of the Bajuni minority clan he together with members of his family

suffered cumulative persecution while living on the island of Koyama.

In the course of his interviews serious credibility issues were raised and the Commissioner has adverted to them in the

Section 13 Report. The applicant claims that he had not visited any of the nearby or outlying islands around Koyama nor

had he visited the mainland at any time in his life. The only language the applicant can speak is Bajuni, he does not speak

Somali. Notwithstanding the applicant's claim to have been a fisherman the applicant did not know the names or indeed

the identity of two famous Bajuni boat builders who are known widely among the Bajuni community. The applicant when

asked in the course of his hearing what type of wood was used to build boats did not know and gave an incorrect answer.

Country of origin information indicates that other Bajuni fishermen ferry passengers from Kismayo and Brava to Kenya in

troubled times to earn a living and it is simply not believable that the applicant would not have been aware of this trade.

It is similarly unbelievable that the applicant would have been a fisherman for as long as he claimed and not to have

visited at any time either the mainland or other nearby islands.

The applicant's knowledge of the geographical size and population of the island was also seriously lacking. The applicant in

the course of his interview stated there was no police station on the islands however when it was put to the applicant is

that this was not so he agreed that maybe there was a police station on Kudai island. The applicant claims to have been

persecuted by majority clans over a protracted period of time. The applicant in the course of his interview claimed that

the family was attacked by the Darod and Hawayie militia. Country of origin information indicates that the Maheran clan

militia attacked the Bajuni on the islands and that eventually the Maheran settled on the islands and that the Bajuni had

to work for them doing labouring work. That the applicant would not know who his main attackers were defies belief.

The applicant claimed to have lived on the island of Lamu in Kenya for some two years. The applicant claimed to have

paid gold in the sum of 5000 Kenyan shillings which is approximately €50 to an agent to fund his own and his family's

travel to Ireland. The applicant does not have any travel documentation and has not managed to produce or procure any

of this documentation to the tribunal. The tribunal does not know when or how the applicant actually came to Ireland.

A language analysis test was carried out whereby the applicant's speech was analysed in terms of phonology, lexicon and

syntax. The applicant only speaks Swahili and has no knowledge whatsoever of Somali which is the national language of

Somalia. The conclusion of the report is to the effect that on the basis of the applicant's speech and his knowledge of

the country the applicant can definitely not be placed within the speech community of Somalia. The applicant can most

likely be placed within the speech community of the northern coast of Kenya or Zanzibar. And issue was raised by counsel

on behalf of the applicant to the effect that the language analyst is from Tanzania, Swahili being the language of that

country. The presenting officer on behalf the Commissioner made a submission to the effect that Bajuni is a dialect of

Swahili. From a purely practical point of view given the close trading ties that exist between the islands of Koyama and

other islands off the Somali coast, it is usual the islanders have a working knowledge of Somali. That the applicant has no

such understanding taking into account the other serious lack of us in the applicant's knowledge of life and living on the

island of Koyama the applicant's appeal cannot be considered in a favorable light.”

The Language Analysis Report

A language analysis report was commissioned from the Immigration and Naturalisation Service of the Ministry of Justice, The

Netherlands. It is perhaps appropriate to quote from the report which is relatively short.

It commences with a declaration by the analyst that:

“This report on language analysis of the applicant referred to below has been drawn up by order of the Immigration and

Naturalisation Service (INS, Ministry of Justice, The Netherlands). The language analysis on which this report is based

was carried out in an objective and professional manner. The work of the analyst is subject to continuous supervision by

a university-trained linguist employed by the INS”

After recording the file number and a “Cresta” number (presumably some form of tracking number), it continues by specifying “areas of

analysis”. It states:

“The determination of the area of socialisation has been based on:”

[(i)] “analysis of the knowledge of the country and its culture

This analysis examines important domains relative to the experience and the knowledge the applicant has of the

country/region he claims to come from.”

[(ii)] “linguistic analysis

This analysis examines the applicants language(s) / dialect(s) in terms of phonology, morphology, vocabulary and

other features.

Origin according to the applicant: Somalia

Origin according to language analysis:

The analysis allows me to state that the area of socialisation which has influenced the applicant the most, is definitely

not Somalia.

1. Language(s) / dialects(s) of the persons involved

Language(s) / dialects(s) of the applicant: KiBajuni

Language(s) / dialects(s) of the interviewer: English

Language(s) / dialects(s) of the analyst: Swahili

2. Personal data supplied by the applicant

Surname, first name: not mentioned

Date of birth: not mentioned

Place of birth: Koyama

Ethnicity: Bajuni

Place(s) of residence: Koyama, Somalia

Stay(s) in other countries: Kenya

Education: not mentioned

Profession: Fisherman

Origin of the father: Bajuni

Origin of the mother: Bajuni

3. Applicant’s knowledge of the country and its culture

Among others, questions were asked about administration, culture, geography, housing/household, transportation

system and tribes.

Administration

The applicant explained that Koyama is one single island and that it is not divided into any regions.

Culture

The applicant explained how one would go about when one wants to get married. He also explained what happens after

the wedding ceremony has taken place.

Geography

The applicant explained on which side of Somalia Koyama is situated. He named other islands around Koyama. He himself

has never been to the other islands. He briefly describes the physical characteristics of Koyama.

Housing/household

He describes how houses are built close to each other in Koyama.

Transportation system

He confirms that they use boats for travelling from the island to the mainland.

Tribes

The applicant correctly mentioned the different clans of the Bajuni tribe

4. Applicant’s language(s) / dialect(s)

In the applicant's speech is analysed in terms of phonology, lexicon and syntax. The applicant only speaks Swahili. He has

no knowledge whatsoever of Somali, which is the national language of Somalia.

Phonology

The applicant's pronunciation shows features of north eastern coast Swahili.

(Examples given)

Lexicon

The applicant’s lexicon is in general that of standard Swahili.

(Examples given)

Syntax

The applicant's syntax is that of standard Swahili.

(Examples given)

5. Conclusion

On the basis of his speech and his knowledge of the country the applicant can definitely not be placed within the speech

community of Somalia. The applicant can most likely be placed within the speech community of the northern coast of

Kenya or Zanzibar.

6. Additional Remarks

None.

7. Background of the analyst

The analyst is from Tanzania. Swahili is his dominant language. He is also fluent in English.”

Country of origin information re language and linguistics

Included in the country of origin information that was before the Tribunal was a “Note on Identification of Somali Asylum Seekers” by

Jens Weise Olesen of the Swedish Refugee Council, which states (inter alia):

“The Bajuni are a Swahili speaking Bantu people. Their language only differs dialectically from the other Bantu speaking

peoples who are found along the north-east coastal area of Kenya and in the Somali coastal town of Brava. In the

Kismayo area the Bajuni are known by the term Wa-Tiku. Among the Bajuni themselves only Al-Bajuni is spoken, but in

their contacts with Somalis -- both in the marketplace and in relation to Somali public authorities -- it is necessary to use

at least rudimentary Somali.

Somalia is an extremely oral society in which the spoken language is the basis for all intercourse between individuals.

Therefore, no one can get by without knowledge of the Somali language. This is the case even for non-ethnic Somalis

such as the Bajuni. According to Bernhard Helander, a Somali Bajuni must as an absolute minimum command the following

Somali phrases:” (certain phrases then listed)

Further, a single (unattributed) page from another COI document included among the documents exhibited, and which was annexed to

the s.13 report, states, inter alia:

"The Bajuni are of mixed Arabic, Bantu, Somali and possibly Malay ancestry. Their principal language is KiBajuni, a dialect

of Swahili. Bajuni Elders who met with the delegation of a joint British-Danish-Dutch fact-finding mission on Somali minority

groups to Nairobi in September 2000 informed the delegation that most Bajuni also speak Somali. The Elders stated that

younger Bajuni, who have lived mainly in exile, might only have a limited knowledge of Somali but they stressed that they

should know at least some keywords in Somali as their family Elders would have taught them."

[As I aside I should state that this Court has complained again and again (apparently to no avail) about the practice of both the RAC

and the RAT referring to or annexing isolated pages / extracts from unattributed COI source material to their reports / decisions, as

this creates problems for any Court that is asked to conduct a review.]

The Applicant’s case

Although the grounds upon which the applicant seeks relief are pleaded in great detail over six pages of closely spaced typescript in

his draft Statement of Grounds, the substance of his complaints are summarized in four short paragraphs in the Outline Legal

Submissions that have been filed on his behalf. They are:

a) The Refugee Appeals Tribunal erred in fact and in law and breached the principles of fair procedures and natural and

constitutional justice in relying on the language analysis test conducted in respect of the applicant in circumstances

where the said language analysis was fundamentally flawed;

b) The Refugee Appeals Tribunal erred in fact and in law and breached the principles of fair procedures and natural and

constitutional justice in failing to have any regard/any adequate regard to the grounds of appeal raised in the applicant's

Notice of Appeal;

c) The Refugee Appeals Tribunal heard in fact and in law and breached the principles of fair procedures and natural and

constitutional justice in failing to give reasons or adequate reasons for its decision;

d) The Refugee Appeals Tribunal erred in fact and in law and breached the principles of fair procedures and natural and

constitutional justice in reaching adverse credibility findings which said it credibility findings were reached as a result of on

fair procedures.

The Complaint based on Language Analysis

The Applicant’s Submissions.

Counsel for the applicant pointed out that the validity of the language analysis was challenged by the applicants legal representatives

by a letter to the Refugee Applications Commissioner dated the 6th of July 2005. This letter raised objection to the validity of the

language analysis report on account of the fact that it was compiled by a Tanzanian analyst who spoke Swahili and English only and

professed to have no knowledge of KiBajuni. The said letter characterised the report as fundamentally flawed on that account and

requested that a Bajuni speaker would analyse the recording. No revised analysis was conducted. The applicant attended for

interview before the Refugee Applications Commissioner who used the allegedly flawed report to undermine the applicant’s credibility

and to ultimately refuse his claim. In the commissioner’s report following statement appears: “… the applicant was tested for the

KiBajuni language with an interpreter from the Bajuni clan and the results indicate that the applicant could not be placed within the

speech committee of Somalia”.

In the applicant’s notice of appeal the validity of the language analysis test was again challenged by the applicants legal

representatives. The basis of this challenge was that the language analyst engaged to carry out the test did not in itself speak the

applicant’s native language. Instead he spoke Swahili and English only. The applicant contended that the conclusion in paragraph 4 of

the report, that the applicant speaks Swahili only, is fundamentally flawed and was reached in circumstances where the language

analyst was completely unqualified to assess the applicant’s linguistic characteristics in any other respect of the service did not

himself speak the language which the applicant professes to speak. The applicant contends that and non-Bajuni/KiBajuni speaker is

not in a position to determine whether or not the language can or cannot be spoken by another.

Furthermore, the applicant submits that his section 11 interview and his hearing before the respondent were conducted with the

assistance of KiBajuni speaking interpreters. He argues therefore that the conclusion that the applicant speaks Swahili only is

fundamentally flawed and was recent circumstances where the analyst was unqualified to so determine and in circumstances where

the refugee appeals Tribunal was on notice of the fact that this was so. The applicant says that in the circumstances it was

incumbent on the refugee appeals Tribunal to request a revised language analysis report from suitably qualified analyst.

Further, the applicant says the refugee appeals Tribunal reached a decision on the applicant’s application without having regard to

the information contained in paragraph 3 of the language analysis report. The applicant contends that this information concerning

Koyama’s Administration, culture, geography, housing/household, transportation system and tribes was given by the applicant and is

not contradicted. The applicant maintains that the details given by the applicant in this regard are at variance with the report’s

remaining findings which have as their basis the analyst’s knowledge of Swahili. The applicant maintains that the refugee appeals

Tribunal had notice, alternately constructive notice, of the inadequacy of the report and the unresolved contradictions therein. The

applicant says that in the circumstances it was incumbent upon the refugee appeals Tribunal to commission a further report which

was not done, thereby rendering the decision invalid.

The Respondent’s Submissions

The respondent has submitted that the applicant's complaints about the reference to the Language Analysis Report are not well

founded for the following reasons:

(i) the main finding of the report is that the applicant does not speak Somali and this is the operative finding of the report

according to the Tribunal member;

(ii) the Tribunal member records the complaints of the applicant's counsel to the effect that the language analyst spoke

Swahili;

(iii) she also notes the (correct) submission of the Presenting Officer to the effect that Bajuni is a dialect of Swahili;

(iv) the applicant did not challenge the ‘Swahili’ aspect of the report in his notice of appeal;

(v) the applicant did not succeed in having the Language Analysis Report withdrawn by the Refugee Applications

Commissioner and therefore it was validly before the Tribunal member

Decision

The Court finds itself in agreement with the submissions of the respondent. There is no evidence of any mistake of fact and the

characterization of the Language Analysis Report as a “fundamentally flawed piece of evidence” represents overstatement and can be

viewed as hyperbole. The complaints articulated by the applicant would, at best, only go to the question of the weight to be

attached to the Language Analysis Report and to its admissibility before the Tribunal member. The Tribunal member was fully aware of

the applicant’s submissions as to the alleged shortcomings of the report and in fact makes specific reference to them. Moreover, no

contradictory expert evidence was adduced on behalf of the applicant. The question of what weight, if any, was to be attached to a

piece of admissible evidence was a matter for the Tribunal member. This Court is only concerned with the lawfulness of the process.

The Tribunal member was perfectly entitled, and within her jurisdiction, to take the view that she could rely upon the operative

finding of the Report notwithstanding the complaints made. In the circumstances the Court finds that the complaint made under this

heading is not made out.

The complaint based on the alleged failure to consider the Notice of Appeal

The Applicant’s Submissions

The applicant contends that his Form 1 Notice of Appeal contains substantial representations on his behalf. He submits that in the

decision reached by the Refugee Applications Commissioner certain findings were made concerning the applicant's claim and these

were specifically challenged in the Notice of Appeal.

While the Notice of Appeal is extensive the Court understands the core of this complaint to be directed to submissions made to the

following effect:

“The R A C failed to comprehend and erred seriously in concluding that the appellant should have a knowledge of and

speak the Somali language. The fact is that his mother never spoke the Somali language and at all times he spoke Bajuni.

The R A C has erred in law and failed to comprehend that the appellant was an only child, his father died when he was

young and his mother was very protective of him as a child and into adulthood. Consequently notwithstanding that he is

a fisherman, he was rarely exposed happenings or events outside his immediate environs and does not have a detailed

knowledge of people or places other than within his immediate island of Koyama.”

The applicant says that notwithstanding the fact that information was submitted challenging the findings made by the Commissioner,

the Tribunal on certain matters, reached identical findings to those of the Commissioner. The applicant complains there was no

analysis of his submissions and no weighing of competing assertions of fact.

The applicant submits that where findings arrived at by the Commissioner are specifically addressed and challenged in a Notice of

Appeal, then it is not open to the Tribunal member to simply affirm these findings without engaging in some form of weighing of the

applicant's evidence in rebuttal. The applicant relies on the decisions of Birmingham J in I.K v Minister for Justice, Equality and Law

Reform [2008] IEHC 173 and T.G. v Refugee Appeals Tribunal [2007] IEHC 377 in support of this proposition.

Further, the applicant relies on my decision in D.V.T.S. v Minister for Justice, Equality and Law Reform [2008] 3 I.R. 476 where I said:

“While this court accepts that it was entirely up to the second respondent to determine the weight (if any) to be

attached to any particular piece of country of origin information it was not up to the second respondent to arbitrarily

prefer one piece of country of origin information over another. In the case of conflicting information, it was incumbent on

the second respondent to engage in a rational analysis of the conflict and to justify its preferment of one view over

another on the basis of that analysis.”

The applicant submits that similar considerations apply in relation to findings of fact arrived at by the Commissioner and challenged by

the applicant in his Notice of Appeal.

The court's attention was also drawn to the case of Iroegbu v Refugee Appeals Tribunal (Unreported, High Court, 23rd January, 2007)

where Murphy J. applied Clarke J’s decision in Muia v Refugee Appeals Tribunal (Unreported, High Court, 11th November, 2005), and

stated:

“In relation to the particular decision with which he was concerned, Clarke J. goes on to state:

‘While the decision does state that the decision maker has taken into account the submissions made on behalf of

the applicant there is nothing in the body of the decision that shows that the decision maker addressed, to any

extent, the country of origin information put forward on behalf of and favourable to the applicant. If the decision

demonstrated that due consideration had been given to that information but that, in the light of the alternative

information available (which, in fact, is referred to in the decision), and following a rational analysis of the totality of

the evidence, a conclusion was reached that State protection was adequate then it might very well be difficult to

seek to go behind that.’

Where, however, as here, there is no evidence to be found in the decision that the country of origin information

favourable to the applicant’s case was considered and, equally, as a consequence, no rational explanation as to why it

was rejected, it seems to me that there are at least arguable grounds for the applicant’s contention that the decision

maker did not take into account relevant considerations.”

Again the applicant has submitted that similar considerations apply in relation to findings of fact arrived at by the Commissioner and

specifically challenged in the Notice of Appeal.

The Respondent’s Submissions

The respondent says that the applicant has failed to address this particular complaint in his affidavit. Moreover, and in particular, it

has not been deposed to on oath that these submissions were in fact made during the oral hearing. It is of course true that the

tribunal was put on notice in the Form 1 document of an intention on the part of the applicants to make these submissions. They

were certainly made in writing. In that regard the states and that she took the notice of appeal into account. The respondent seeks

to rely upon the statement of Hardiman J in G.K. v The Minister for Justice, Equality & Law Reform [2002] 2 I.R. 418 where he said

(at p 426 -427):

“A person claiming that a decision-making authority has, contrary to its express statement, ignored representations which

it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an

arguable case.”

The respondent submits that the applicant has failed to show any direct or inferential evidence that she did not account of the notice

of appeal submitted.

The respondent further contends that in any event the matter at issue, viz that it was to be expected in the light of available

country of origin information that the applicant would have a knowledge of and speak the Somali language, was fairly put to the

applicant. The made her determination based on her assessment from a “practical point of view given the close trading ties that exist

between the Island of Koyama and other islands off the Somali coast.” Counsel for the respondent submits that this finding is rational

and reasonable and was made fully within the respondent's jurisdiction.

Decision

The Court agrees with the submission that the applicant has failed to show any direct or inferential evidence that she did not take

account of the Notice of Appeal submitted. The respondent expressly stated that she had taken it into account. She was not obliged

to address every piece of evidence proferred to her in the course of her judgment. If the evidence offered by the applicant was

capable of some form of critical analysis then such analysis might be expected. However, the applicant’s evidence as to having had a

sheltered upbringing was utterly incapable of being independently tested. At the end of the day the Tribunal member had to balance

against that what is generally known about the country of origin and the Bijuni people, including their language, linguistics, history and

way of life on the Bijuni islands, particularly the life of a fisherman as the applicant claims to be, and form a view as to the applicant’s

overall credibility. This she did, and concluded in all the circumstances, as she was entitled to do, that there were “serious lacunas in

the applicant’s knowledge of life and living on the Island of Koyama”. This coupled with the fact that “given the close trading ties that

exist between the Island of Koyama and other islands off the Somali coast it is usual that islanders have a working knowledge of

Somali” and that “the applicant has no such understanding” cumulatively caused her to conclude that the applicant’s story simply was

not credible. This was a judgment that it was open to her to make in all the circumstances and one which was, as has been pointed

out, both rational and reasonable. In the circumstances the Court finds that the complaint made under this heading is not made out.

The complaint based on alleged failure to give reasons

The applicant contends that the decision is vulnerable to challenge on the ground that it does not contain reasons sufficient to

identify the basis for its adoption. He cites Rajah v Royal College of Surgeons [1994] 1 ILRM 223 in support of that. The respondent

points out that in the case of administrative decisions it has never been held that the decision maker is bound to provide “ a

discursive judgment as a result of its deliberations” – O’Donoghue v An Bord Pleanala [1991] ILRM 750 cited with approval by Herbert J

in Kikumbi v The Refugee Applications Commissioner (Unreported, High Court, 7th February, 2007.) Herbert J also referred to the case

of F.P. and A.L. v. The Minister for Justice, Equality and Law Reform [2002] 1. I.R. 164, Hardiman, J. stated:-

“This court in Ní Eili v. The Environmental Protection Agency (Unreported, Supreme Court, 30th July, 1999) surveyed the

authorities in some detail and, inter alia cited with approval the decision of Evans L.J., in M.J.T. Securities Limited v.

Secretary of State for the Environment [1998] J.P.L. 138. Dealing with statutory obligations to give reasons, the trial

judge said at p. 144 that:-

‘The Inspector’s statutory obligation was to give reasons for his decision and the courts can do no more than say

that the reasons must be ‘proper, intelligible and adequate’, as had been held. What degree of particularity is

required must depend on the circumstances of each case…..’”

Commenting on this Herbert J stated:

“The obligation to give reasons, as explained by the Supreme Court in F.P. and A.L. v. The Minister for Justice,

Equality and Law Reform, does not, in my judgment, require the decider of fact to give reasons why she or he

applying such common sense and life experience found that a particular account or aspects of such an account to

be not credible.”

Counsel for the respondent submitted that when one considers the applicant’s asylum file and the oral evidence offered in the case

that it is easy to see why the Tribunal member found the applicant not to be credible. The Court respectfully agrees with this

submission but moreover, and in any case, the Court is of the view that entirely adequate reasons for the Tribunal member’s decision

were in fact given, as the Court has identified and considered in the immediately preceding section of this judgment. In the

circumstances the Court finds that the complaint made under this heading is not made out.

The complaint that the credibility assessment was flawed.

The Applicant’s Submissions

The applicant submits that where credibility is found to be wanting for cumulative reasons, as in the instant case, and where one or

more of those reasons has been arrived at through an unfair procedure, then the whole of the decision must fall. The case of

Keagnene v Minister for Justice, Equality and Law Reform (Unreported, High Court, Herbert J., 31st of January 2007) is relied upon in

this regard. In that case the judge stated:

"As the Court cannot be aware of what weight the Member of the Refugee Appeals Tribunal attached to each of the six

reasons given by him for finding that the applicant was not credible or trustworthy and that his unsupported testimony

was unreliable, the court must conclude that as reasons four, five, and six cannot be permitted to stand has reached by

the application of unfair procedures, the entire decision must of necessity be therefore set aside.”

The applicant also relies on the decision in Bisong v Refugee Appeals Tribunal (Unreported, High Court, O’Leary J., 25th of April 2005)

where the late learned judge considered the cumulative impact of a number of errors in the assessment of credibility by a Tribunal

member, holding:

"Each of the three matters played a part (probably a minor part) in the assessment of the applicant's credibility. The

crucial and in the view of the court the deciding matter is that each of these errors relate to a single issue i.e. credibility

of the applicant rather than, for example, some relating to credibility and some to some other issues such as the

assessment of the internal conditions in the country of origin. If the errors each related to separate areas of assessment

they would not necessarily have a cumulative effect. However, in this case, each of the errors was part of the one

process i.e. assessment of credibility. In the judgement of the court, when taken together, they could have cumulative

effect on the assessment of credibility. The effect of that accumulation could be to convert what is in each case a simple

and unsubstantial ground of complaint into the substantial ground needed to succeed in this application.”

The applicant submits that in the instant case the adverse credibility findings reached in respect of the applicant were reached

following unfair procedures. It was submitted that statements made by the Tribunal member formed the basis for adverse credibility

findings and yet these statements are themselves without foundation e.g. "… it is usual that islanders have a working knowledge of

Somali.” Furthermore, credibility findings are reached in respect of the applicant's claim in circumstances where they have no

foundation other than conjecture on the part of the Tribunal member and are unsupported by any objective basis e.g. "It is simply

unbelievable that the applicant would have been a fisherman for as long as he claimed and not to have visited at any time either the

mainland or other nearby islands." Further, the Tribunal member asserted that “The applicant when asked in the course of his hearing

what type of wood was used to build boats did not know and gave an incorrect answer”. It was submitted that there was no

evidence before the tribunal as to what type of wood was used to build boats on Koyama and as to what was the supposedly

‘correct’ answer. Counsel for the applicant contended that if the Tribunal was aware of country of origin information indicating this

then it was never provided to the applicant and his legal team. If the Tribunal member had such material and it had not been

furnished then this represented a breach of section 16(8) of the Refugee Act 1996, which provides:

“(8) The Appeal Board shall furnish the applicant concerned and his or her solicitor (if known) with copies of any reports,

observations, or representations in writing or any other document, furnished to the Appeal Board by the Commissioner

copies of which have not been previously furnished to the applicant pursuant to section 11 (6) and an indication in writing

of the nature and source of any other information relating to the appeal which has come to the notice of the Appeal

Board in the course of an appeal under this section.”

The applicant further submits that the recommendation discloses an absence of any analysis supporting the conclusion that the

applicant's claim lacks credibility. The applicant points to the decision in Zhuchkova v Minister for Justice, Equality & Law Reform

[2004] IEHC 404 wherein Clarke J followed the judgment of Peart J in the Da Silveiria v Refugee Appeals Tribunal (Unreported, High

Court, Peart J., 9th July, 2004) and observed that:

“…. there is a wider principle, being the one identified by Peart J., when he says that the decision cannot be based simply

upon a gut feeling or a view based on experience or instinct that the truth has not been told. A finding of lack of

credibility, it is at least arguable, must therefore be based on a rational analysis which explains why, in the view of the

deciding officer, the truth has not been told.

The Respondent’s Submissions

In reply, counsel for the respondent has submitted the following: the Refugee Applications Commissioner determined that the

applicant showed a lack of knowledge towards the Bajuni community, and the island raising the question of the core area of the

applicant's claim to be Bajuni and from Somalia. In particular he did not know the following:

(i) he stated that he did not visit the islands around Koyama or the mainland during his fishing career -this was regarded

as not plausible;

(ii) the country of origin information indicated that Bajuni fishermen were ferrying passengers from Koyama to Kenya to

earn a living. It was regarded as not plausible that the applicant would be unaware of this;

(iii) the applicant had no idea how many people were on Koyama Island;

(iv) the applicant incorrectly stated that there was no police station on the islands;

(v) the applicant did not know where the Bajuni community lived in Kismayo;

(vi) he did not know the names of two famous Bajuni boat builders.

The applicant claims that he was attacked by the Darod and Hawayie militia and the country or information stated that it was the

Maheran clan militias attacked the islands.

The applicant claimed he had lived on Koyama for 41 years and it was expected that he would be familiar with the Somali language.

It was noted that he spent two years in Kenya before travelling to Ireland and that he could have sought asylum in Kenya if

necessary

The applicant's explanations as to why he did not possess passport/identity documents were not plausible and section 11B of the

Refugee Act 1996, as amended applied to the applicant.

Counsel for the respondent contended that the Tribunal member identified “serious credibility” issues arising in respect of the

applicant's claim and added “it is similarly unbelievable that the applicant would have been a fisherman for so long as he claimed and

not to have visited at any time either the mainland or the nearby islands”. She further added “that the applicant would not know his

main attackers defies belief”. She also states that it is” usual “that islanders have a working knowledge of Somali”

The respondent relies on the decision of Mister Justice Peart in Imafu v Refugee Appeals Tribunal (Unreported, High Court, Peart J.,

9th December 2005) and on Tabi v Refugee Appeals Tribunal (Unreported, High Court, Peart J., 27th July 2007), both of which caution

against the High Court substituting its own view on credibility for that of the Tribunal Member, in the absence of a clear and manifest

error. It was submitted that there was more than adequate information before the Tribunal member to allow to make this assessment

as regards the credibility of the applicant.

Decision

In the Courts view it was a clear and manifest error to confront the applicant which 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 before the Tribunal, that has been disclosed to the Court at any rate, dealing with this. It is to be

inferred that the Tribunal member must have had such material, or that she was possibly aware of this detail from other cases that

she had dealt with. However, natural justice requires that a person should have an opportunity to know the case against them and a

reasonable opportunity to deal with it. This is the rationale behind s.16(8) of the Refugee Act 1996. In the Courts view there was

arguably a prima facie breach of natural justice and of s.16(8).

The application was not refused because the applicant was regarded as having given an incorrect answer to this particular question.

It was refused for a variety of reasons, one of which was that that the applicant showed a lack of knowledge towards the Bajuni

community, and the island. This supposedly “incorrect answer” was just one of a series of circumstances causing the applicant to

conclude that the applicant lacked the knowledge in question. It could be argued that this factor, namely lack of knowledge, that was

ultimately taken into account with other factors, was well supported by other evidence and that therefore the overall view under this

heading was sound. However, while it could be argued that this one detail is unlikely to have tipped the balance or to have

significantly added to the overall impression of the Tribunal on that issue, it is impossible to be certain of this. As pointed out by

Herbert J in Keagnene v Minister for Justice, Equality and Law Reform “the Court cannot be aware of what weight the Member of the

Refugee Appeals Tribunal attached to each of the …. reasons given by [her] for finding that the applicant was not credible or

trustworthy and that his unsupported testimony was unreliable.” In the circumstances, and on this one discrete issue, the Court

considers that the applicant has demonstrated substantial grounds for arguing that the entire decision should be set aside.