High Court of Ireland Decisions

Judgment Title: A. -v- MJELR & ANor

Neutral Citation: [2010] IEHC 143


High Court Record Number: 2007 1114 JR

Date of Delivery: 03/02/2010

Court: High Court

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.”

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.”

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”

“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.


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.”

“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)

"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."

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.

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.

(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

The complaint based on the alleged failure to consider 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 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 IR 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 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.”

“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 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.

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.”

The complaint that the credibility assessment was flawed.

"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.”

"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.”

“(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.”

“…. 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.

(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 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.

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.