United Kingdom Asylum and Immigration Tribunal

AM (Bajuni-Somali Speaker-Kibajuni Speaker) Somalia [2002] UKIAT 03169

HX/45738-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 2 July 2002

Date Determination notified: 26 July 2002

Before
MR D K ALLEN (CHAIRMAN) MR A G JEEVANJEE MRS J HARRIS
Between

 

AM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS
1. The Appellant, who claims to be a citizen of Somalia, has been granted leave to appeal to the Tribunal against the determination of an Adjudicator, Dr M S W Hoyle, who determined on a preliminary issue that he was not a citizen of Somalia and accordingly dismissed his appeal against the Respondent's decision to give directions for his removal from the United Kingdom, subsequent to refusal of his claim for asylum.

2. The hearing before us took place on 2 July 2002. Mr D O'Callaghan for Selva & Co. appeared on behalf of the Appellant, and Mr M Blundell of the Home Office Presenting Officer's Unit appeared on behalf of the Respondent.

3. Mr O'Callaghan stated that much in the grounds was relevant to the problems he had been confronted with at the appeal in the light of the failure by the Respondent to comply with directions, but it was now the case that the issues had refined themselves quite significantly. The Adjudicator had agreed that the lower standard of proof was appropriate to the nationality issue, since it went to the heart of the asylum claim. The Appellant asserted that he was Bajuni. His answers to questions in interview were not challenged and they seemed to be correct. At paragraph 62 of his determination, the Adjudicator had said that he would have given the Appellant the benefit of the doubt on those answers alone. Much emphasis had been placed on the report headed "Minority Groups in Somalia", being the report of a joint British, Danish and Dutch fact finding mission to Nairobi between 17 and 24 September 2000. The proper approach to the assessment of evidence as set out by the Court of Appeal in Karanakaran [2000] INLR122 was at the forefront. There was concern as to whether it was appropriate to attach such weight to this report when other matters favoured the Appellant. The point was made at paragraph 5.2 at page 20 of the minority groups report that most Bajuni speak some Somali. The Appellant's evidence was that he did speak some Somali. He said that the main language spoken by the Bajuni was Kibajuni. At the hearing, he had said he spoke Kibajuni. He did not therefore fall outside this paragraph of the report. He speaks Kibajuni and also some Somali. However, Mr O'Callaghan accepted that he could not answer paragraph 2 of paragraph 5.2 as he was not a linguist. It was the case that the Appellant had been interviewed in Swahili and also a Swahili interpreter had been provided at the hearing, and that was at the Appellant's request, and no particular dialect had been requested.

4. As regards the determination of the Tribunal in Suleiman [2002] UKIAT 00416, there were problems with credibility in that case. The Appellant there spoke no Somali at all and said she spoke no Kibajuni at all. In Karanakaran terms, you could say that she did not satisfy the lower standard of proof.

5. It was also submitted that there was an error by the Adjudicator in paragraph 62 of the determination concerning a lack of any justification or explanation for the Appellant's explanation as to his lack of Somali. This was to be found from paragraph 16 of the determination, where the Appellant said that he lived in a Swahili speaking village and needed to speak Swahili and Arabic in his area. The next village was Arab speaking. An explanation had therefore been given. The community stayed within itself, and there was very little contact beyond the village other than the local Arab village. It was necessary to go further to find Swahili speakers. If it was all taken into account and bearing in mind how close this village was to the border, then to the lower standard he had shown he was Bajuni. The only adverse issue being paragraph 2 of paragraph 5.2 of the minority report, and in Karanakaran terms that could not be allowed to outweigh everything else.

6. In his submissions, Mr Blundell accepted the points of distinction between this case and Suleiman. The answers given concerning his nationality at interview appeared to be correct. However, Mr Blundell relied on Suleiman as it addressed the language point and this was a central issue. He took us to paragraph 12 of that determination, where the point was made that someone who spoke Kibajuni could not possibly describe their language as Swahili. At paragraph 14 the test was stated. It was said by the Tribunal that Adjudicators should approach any case involving someone who claimed to be a Bajuni resident of Somalia but who could not speak Kibajuni (let alone Somali) with great caution. The Appellant had spoken some Somali, but it was only his evidence that he could speak Kibajuni. There was no reliable evidence therefore that he could speak Kibajuni and hence the paragraph 14 point was relevant. The fact that he could not speak Kibajuni was a strong indication that he was not Bajuni. The Adjudicator was therefore correct in his conclusions.

7. By way of reply, Mr O'Callaghan suggested that the appeal had narrowed itself down to two issues, the question of whether the Appellant spoke Kibajuni and the application of Karanakaran. It did not seem that his claim that he spoke Kibajuni was challenged, but at the time of the hearing, no one had the minority report before them. If he was found to be truthful and correct on a number of issues concerning Somalia or his own area, then he should be given the benefit of the doubt that he spoke Kibajuni. Paragraph 5.3.2 of the minority report indicated that fishermen spent a lot of time on the islands and it was plausible that he would have had limited contact with Somali speakers. Fishing carried on. Only certain fishermen, not including the Appellant, had been unable to assume their former occupations as fishermen.

8. We reserved our determination.

9. The minority report was not before the Adjudicator, but, since he was clearly troubled and understandably so by a lack of evidence concerning the language issue in this case, he adjourned the appeal to enable the document to be provided and submissions made. Mr O'Callaghan very properly did not pursue a number of the matters in the grounds of appeal since it is now the case, albeit very late in the day, that he has been provided with a copy of the minority report and has had an opportunity to read it and consider it. We are grateful to both him and to Mr Blundell for the helpful and sensible way in which the appeal was conducted before us.

10. The Appellant claimed to be from Somalia. He claimed to be a Bajuni. He was interviewed in Swahili. His evidence at the hearing before the Adjudicator was given with the benefit of a Swahili interpreter, and no particular dialect was requested. At interview, he was able to answer a number of questions accurately, such as the names of the principal towns in Somalia, the principal rivers, the capital and the largest city south of Mogadishu and the President from 1969 to 1999. He said that he belonged to the Bajuni clan and his clan's main language was Swahili. He said that his clan also spoke Arabic. He said that he did not speak Somali. He said that he spoke Swahili at home. He was a fisherman.

11. In his witness statement, the Appellant said that he left school at fifteen and worked as a fisherman. Three hundred people lived in his village and the next village consisted of Arabs and was an Arabic speaking village. He said that he spoke Swahili which was called Bajuni Swahili. He said he needed to speak Swahili and Arabic in his area. He said that he knew a few Somali words. He said that Bajunis only spoke Swahili where he was. Two thirds of his village were Bajuni. He said he did not speak Somali himself because his parents spoke Swahili and Arabic. He said it was Bajuni Swahili. Bajuni was a clan. Kibajuni was the language. It was like Swahili.

12. The Adjudicator attached weight in determining the appeal to paragraph 5.2 of the "Minority Groups in Somalia" report. This was information provided to the delegation by Bajuni elders.

13. According to the elders, most Bajuni speak some Somali, although the main language spoken by the Bajuni is Kibajuni, a dialect related to Swahili. The Bajuni elders advised the delegation that younger Bajuni, who have lived mainly in exile, alienated from mainstream Somali society, may have only very limited knowledge of Somali but they stress that they should know at least some key words in Somali as their family elders would have taught them. Bernard Harborne, Chief of the UN Coordination Unit for Somalia, with whom the delegation met, also stated that most Bajuni are able to speak some Somali in addition to Kibajuni.

14. The Bajuni elders informed the delegation that, although their language, Kibajuni, is related to Swahili, their language is very different to the Swahili dialect spoken in the areas of Kenya immediately below the Kenya-Somalia border, including the islands that continue from the Somali border down along the coast towards Mombasa, although there are some common words.

15. The Adjudicator concluded, at paragraph 62 of his determination, that whereas the Appellant showed some knowledge of Somalia at interview, the answers generally were inconclusive. He would, however, have given him the benefit of the doubt on those answers alone. He concluded, however, that the report showed that the Appellant's explanation as to his lack of Somali language needed a justification or explanation which had not been provided and that this was adverse to him such that the Adjudicator did not believe his story.

16. Mr O'Callaghan argued that an explanation was provided in that the Appellant lived in a village which was Swahili speaking and he needed to speak Swahili and Arabic in his area, Arabic being the language of the next village. He said that he knew a few Somali words. We note in passing that this goes in contrast to what he said at interview that he did not speak Somali. In any event, we note that the comment of the Bajuni elders was that the younger Bajuni might have only a very limited knowledge of Somali but this was premised on the basis of applying to those who had lived mainly in exile. The Appellant's story is, however, that he lived in Somalia until 2000. We note also that he said he went to school until the age of fifteen.

17. Mr O'Callaghan, however, very fairly accepted that he could not answer paragraph 2 of paragraph 5.2 reproduced at paragraph 14 of our determination. There, as can be seen from the above Kibajuni is described as being related to Swahili and Kibajuni is said to be the main language spoken by the Bajuni and to be a dialect related to Swahili. We remind ourselves that the Appellant was interviewed and gave evidence in Swahili and at no stage appears to have asked for a Kibajuni interpreter to be provided. We also bear in mind the point from paragraph 14 of the tightly reasoned determination of the Tribunal in Suleiman that, following a careful assessment of the evidence concerning a claim raising some similar issues, the Tribunal's conclusion that Adjudicators (and by inference the Tribunal also) should approach any case involving someone who claims to be a Bajuni resident of Somalia but who cannot speak Kibajuni (let alone Somali) with great caution.

18. We do not consider that we can accept the bare contention by the Appellant that he speaks Kibajuni as being sufficient to show to the lower standard of proof that he does. It has to be seen in the light of the way in which he gave his evidence, at no stage having sought a Kibajuni interpreter. As part of the balancing exercise, we must bear in mind that at best he speaks a few words of Somali, and the Bajuni elders said that younger Bajuni who had lived mainly in exile alienated from mainstream Somali society should know at least some key words in Somali, and we bear the very limited knowledge of Somali that the Appellant has in mind in this regard, albeit as a lesser factor. We must, of course, place into the balance also the apparently accurate answers the Appellant gave about Somalia at interview. In so doing, we bear in mind the principles in Karanakaran, which required the reaching of a well rounded decision as to whether in all the circumstances there is a serious possibility of persecution for a Convention reason, not excluding the possibility that relevant matters did not happen unless we have no real doubt that they did in fact happen and not excluding any matters from consideration and assessing the future unless they can be safely discarded on account of a lack of any real doubt that they did not in fact occur or were not concurrently occurring. Believing that something probably did not occur does not justify excluding a matter totally from consideration. In assessing the evidence in the round in this way as we must, we consider that the Adjudicator came to the right conclusion in this case. Answering the two questions or issues posed by Mr O'Callaghan in his closing submissions, we consider it has not been shown to be the case on the lower standard of proof that the Appellant speaks Kibajuni, and we consider that that taken with the other evidence and looked at as a whole leads us to the conclusion that he has not made out his claim to the lower standard of proof to be a Bajuni and therefore we do not accept that he is a citizen of Somalia. We reiterate, therefore, our agreement with the conclusions reached by the Adjudicator.

19. This appeal is dismissed.

    Mr D K Allen

    Chairman