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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> KA (Burden of proof: effect (§§ 14-15 only) Somalia [2004] UKIAT 00198 (19 July 2004) URL: http://www.bailii.org/uk/cases/UKIAT/2004/00198.html Cite as: [2004] UKIAT 198, [2004] UKIAT 00198

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APPEAL No. KA (Burden of proof: effect (§§ 14-15 only) Somalia [2004] UKIAT 00198

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 2 July 2004

Date Determination notified: 19 July 2004

Before
Mr JG Freeman (vice-president) Mrs M E McGregor Mr B D Yates
Between

 

KA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Miss R Chapman (counsel instructed by Fuad Osman) For the respondent: Mr P Deller
DETERMINATION AND REASONS

This is an appeal by someone who claims to be a Tunni citizen of Somalia against a decision of an adjudicator, Mr K Robb, sitting at Birmingham on 15 September 2003 dismissing her appeal on both asylum and human rights grounds. The adjudicator did not accept her origins or personal history, for detailed reasons which he gave. He also took the view, when it came to the question of risk on return, that the appellant would have available the protection of her husband, who was with her in this country.

1. It is agreed that this particular finding was wrong. The appellant's husband is not and has never had been with her here. It is not clear where the adjudicator came by the finding which he made on this point. Miss Chapman suggested that it might have come from the other Somali case, which she told us was before him in the same list. Given the adjudicator's very careful findings on the other features of the case, we are more than prepared to assume in his favour that this was so. Inevitably the way in which cases requiring the same interpreter are booked together places serious demands on adjudicators' powers of distinction between cases from the same country. This was very much an isolated lapse by this adjudicator who, whatever view may be taken on the merits of his decision, did in general do an extremely thorough piece of work on this case.
2. It follows that, on that particular point, dealing with the risk on return for someone who now turns out to be a lone woman, the case will need further consideration, on the basis of whatever turn out to be the relevant individual features of the appellant's case: as we are not equipped to take oral evidence without an undesirable adjournment, this will have to be done by an adjudicator. Whether that is the same adjudicator or another one will depend on the view we take of Mr Robb's credibility findings, to which we now turn: they are subject to a number of clear challenges in the grounds of appeal, and so we shall deal with them in that order.
3. Ground 3.1 challenges the adjudicator's decision that the appellant was not a Tunni/Bravanese on the basis of his findings about the language spoken in her family. The first challenge is based on a letter from Dr Virgina Luling, which in turn is based on somebody she describes as "a respected Bravanese MS Banafunzi of the Somali Bravanese community in Redbridge". This gentleman has apparently been responsible for a set of guidelines produced for the borough of that name; but we know no more about him than that. The evidence of Mr Banafunzi was that "Bravans, especially those who lived outside Bravanese community are most likely to speak the language spoken in the places where they were born and lived".
4. So far as that is concerned, the view taken by the adjudicator at paragraph 18 was not based on what might be described as the inherent improbability of a Bravanese not speaking Bravanese (which is a Bantu language, common to them and the Tunni, although they claim different origins). The adjudicator's findings at paragraph 13 are based on what the appellant said about the use of the Bravanese language in her own family. So far as those findings are concerned, our view is that the adjudicator was entitled to them. We do not think that Mr Banafunzi's evidence, as relayed by Dr Luling necessarily casts any doubt on them.
5. The other element of this point concerns the evidence of the appellant's two supporting witnesses before the adjudicator, Messrs Mohammed and Idow. These were gentlemen who had both been given asylum by the Home Office: in the case of Mr Mohammed, we have before us the material which the Home Office had in his case, and this indicates that he was specifically claiming to have been persecuted as a Bravanese. There is no such material in the case of Idow; but his witness statement shows that this was at least what he said he had been saying.
6. The challenge to the adjudicator's decision about them relates partly to the language point, and partly to the general attitude taken by the adjudicator (at paragraph 34) to their evidence. So far as the language point is concerned the importance of their evidence was that they said that they themselves, although Bravanese/Tunni, spoke no Bravanese. As Mr Deller pointed out, ignorance of anything is an easy claim to make, and hard to disprove; and the adjudicator was careful to say that this had been their evidence. He did not himself however take any specific point about the ease of claiming ignorance; but he did quite clearly take into account this particular point about their inability to speak Bravanese, in Mr Mohammed's case at paragraph 11 in noting Miss Chapman's submissions. The adjudicator did not make this clear on Mr Idow's individual case; but it is clear that he did have the general point in mind when dealing with this aspect of the evidence. Again, we think that is all that was required of him.
7. Coming to point 3.2 this challenges the adjudicator's findings at paragraph 14, the way he sums those up in the last sentence is:

The impression I receive from her evidence and placed as evidence before me was that she was determined to paint a particular picture of her background no matter what actual questions were put to her.

This refers to particular information volunteered by the appellant about her parents' occupations^[1], which to the adjudicator appeared suspiciously to correspond with the list of traditional Bravan occupations given in the Minority Groups Report^[2] at paragraph 7.3.2. The report, dealing comprehensively with Benadiri, Bravanese and Tunni, gives the elders as mentioning "business, fishery, construction, mental work, carpentry, tailoring, weaving and goldsmithing" as the occupational factors of Benadiri. It is also said that "The Bravanese and Tunni elders said their people were also commercially oriented or working as craftsman".

8. In our view there may well be cases where adjudicators are perfectly justified in inferring that knowledge of background material in the public domain will have found its way to an individual appellant, and in regarding as potentially suspicious correspondence between her evidence and what is in the background material. We do not think however that this is one of those cases. The only piece of evidence referred to by the adjudicator at paragraph 14 which might be described as going beyond a natural anxiety to try and give as many details as possible of a case which might be genuine is where he notes that

She did not just say that her father owned a clothes shop but added that he is in commerce.

9. What word in Somali was represented by 'commerce' we do not know, and we do not think it matters. The importance of that comment is that the appellant felt obliged to go on beyond her father's ownership of a clothes shop, which has always been part of her case from the time of her first application onwards, to add that he was in commerce, which would surely have been obvious to anyone. We do not think that this one point justified the adjudicator in making an adverse credibility decision on this ground.
10. There was not in our view any striking correspondence between the occupations the appellant claimed for her parents, and the list in the Minority Groups Report. The point identified at § 10 above was simply what appeared to the adjudicator as a suspicious refinement on something which has been the appellant's case all along, and which there was no specific reason to disbelieve. So on that point the grounds of appeal must succeed. This is not of course crucial, because it is the adjudicator's credibility decision as a whole with which we are concerned, and we have to take a global view of it.
11. Going on to point 3.3, that turns on the adjudicator's view of the occupational history of the appellant's supporting witness, Mr Idow. While it may be that the adjudicator could have taken a more sympathetic attitude to the relatively small variations in that evidence, we do not think it could be said either - if that is the test at this stage – that it was a mistake of law^[3] for him to take the attitude he did; or - which had always been the test before the coming into force of the 2002 Act - he was clearly wrong in that approach to Mr Idow's oral evidence in conjunction with that of the appellant. So that point does not succeed.
12. The next one is a point of a more general nature at paragraph 3.4, which however turns on a specific point made by the adjudicator in dealing with the evidence of Mr Mohammed. Having noted at § 18 that there was no direct evidence on how Mr Mohammed had put his claim to the Home Office, the adjudicator went onIt is not open for me to evaluate his claim but on the limited evidence about him I could not do so anyway. However, I am not persuaded that I am bound to accept his evidence as credible and in consequence find what he says about the appellant to be accurate.
13. The adjudicator went on (at § 19)

As indicated I am not satisfied as to the appellant's credibility as regards her explanation for her inability to speak Bravanese if she is of this clan and has her claimed background. I am not satisfied as to her knowledge of her Witness Mr Idow. Mr Mohammed's evidence was not successfully challenged by cross-examination, the appellant was not shown to lack knowledge of him. However on the face of the material failure in the body of her own evidence, I am not persuaded that these positive elements cure the defects.


The adjudicator then took a generally negative view on the appellant's credibility at paragraph 20.

14. Miss Chapman's submission on this point is essentially that, if Mr Mohammed's evidence could not be disproved to the adjudicator's satisfaction, then he was bound to accept it as true. We cannot accept that as a general point. In a criminal case a jury might have to be directed that, unless they were sure Mr Mohammed was not telling the truth, they must take his account of events as established. In a case such as this, the burden of proof is on the appellant, and the adjudicator was well entitled as he did to weigh all the evidence together, and to come to the view that he could not believe the appellant's case, taken as a whole. That is the general position.
15. We have however to go back to what the adjudicator said at paragraph 14 about the appellant giving what seemed to him suspiciously too much detail about her parents' occupations. While we take the view, as we have said, that points of this kind might be sometimes be justified, we have come to the conclusion that this one was not. If it had been the only point in the adjudicator's credibility findings which ought not to have been taken against the appellant, or which went in her favour, then his decision on credibility could have been upheld. However, taking the adjudicator's findings at paragraph 14 together with those he made in Mohammed's favour, as he very fairly and clearly accepted at paragraphs 18 and 19, we have come to the conclusion that, whatever is the right approach to factual points of this kind (see § 12 above), his decision cannot be upheld.
16. It follows that there will have to be a fresh hearing of the whole case before another adjudicator. We should however say that we do not think Mr Robb ought in any way to be discouraged by this decision. He dealt with the case very clearly and in a great deal of detail, and was evidently not particularly helped by what may politely be described as the lack of energy of the presenting officer before him. We have been in a more fortunate position, and have heard the whole case fully argued on both sides. However we have decided that the appeal must be allowed, and the case remitted, not to Mr Robb.

John Freeman

(approved for electronic distribution)

Note 1   See § 14: father owned a clothes shop, mother made “traditional Somali sweets and Somali arts” and “Bravan shoes”    [Back]

Note 2   not sourced in the copy before us (apparently the one sent to the Home Office by the appellant’s solicitors with their letter of 4 February 2003), but apparently an update of the report of the joint British/Danish/Netherlands fact-finding mission, September 2000    [Back]

Note 3   even under the extended meaning given in E & R [2003] EWCA Civ 49, which may be summarized as including decisions on the facts which are obviously and verifiably wrong, or unfairly reached    [Back]