A Somalian national who sought asylum in the UK and had his petition for judicial review of the decision to reject his application refused has failed in his challenge that decision in the Inner House of the Court of Session.
The petitioner, known as AA, arrived in the UK in 2017 and has his claim for asylum rejected in October 2018. The decision was unsuccessfully challenged in the First Tier Tribunal, with the Upper Tribunal refusing leave to appeal. Petition for judicial review was then brought to the Outer House, where the Lord Ordinary concluded that the UT had not erred in law.
The appeal was heard by Lord Menzies, Lord Malcolm, and Lord Woolman.
The petitioner came from Chula, one of the Bajun islands off the Somalian coast with a population of about 300. He formed an attachment to a local girl, but her family disapproved of the relationship. With the aid of his own family he managed to escape from Somalia, heading to the UK via Yemen and Cologne.
The petitioner’s asylum application was based on the contention that he would face three problems if he returned to Somalia. First, he would face reprisals from the girl’s family. Second, he would face persecution from the militant jihadist group Al-Shabaab. Third, it would be unsafe to travel from Mogadishu, where it was suggested he might live, to Chula.
The FTT judge did not accept the petitioners’ account of the alleged inappropriate relationship and rejected the first ground for that reason. In the second and third grounds, the petitioner relied on an expert report from a Dr Faulkner. The FTT did not agree with his suggestions, stating that they had little factual basis and that there was a reasonable prospect of being able to travel from Mogadishu to Chula by sea.
The appeal to the UT was founded on the submission that the FTT has failed to take into account that the petitioner was only 18 when he gave evidence and thus should have been treated as a vulnerable witness. Furthermore, he did not have notice that the respondent would argue that there was safe passage to Chula from Mogadishu, there was no foundation for the assumption that his family could assist him in obtaining safe passage, and the FTT did not give sufficient consideration to the expert reports.
The UT rejected these arguments. In considering the petition for judicial review, the Lord Ordinary held that the UT had given sufficiently clear reasons for its decisions despite their briefness. Its conclusions on the expert evidence were based on balancing various factors, including the objectivity of the reports and the quality of the inferences in Dr Faulkner’s report.
The petitioner argued before the Inner House that the UT failed to have regard to the petitioner’s age and vulnerability. He also submitted that had the prospect of being transported to Chula by boat been raised earlier he would have sought the views of an expert on this specific matter, given that the seas around Somalia were subject to piracy.
Finally, the petitioner argued that the UT took an irrelevant matter into account by deciding that the petitioner’s family could assist him without having any evidence to that effect.
“Absence of evidence does not mean evidence of absence”
The opinion of the court was delivered by Lord Woolman. On the submissions relating to the petitioner’s age, he said: “We see no force in this. Express reference to the Presidential Guidance is in itself not material. Absence of evidence does not mean evidence of absence. What is important is that the FTT judge respected the petitioner’s position as a young and vulnerable witness and treated him accordingly. We conclude that he did so. In the course of his judgment, he states the petitioner’s date of birth, mentions his lengthy journey here, his youth, and his health problems, together with his resilience and fortitude.”
On the possibility of travel by boat, he said: “We fail to see how that taints the hearing. It was an obvious issue to explore and one which ought to have been anticipated, given that it was introduced by Dr Faulkner’s report. But even supposing that the petitioner was taken unawares, any alleged unfairness disappeared when the FTT judge offered his representatives the opportunity to make further representations. We are unclear why that offer was not taken up.”
He continued: “In addition, as [counsel for the respondent] pointed out, it was never disputed on behalf of the petitioner that he could be safely returned to Mogadishu, where there is a Bajun community. The FTT concluded that it would be reasonable for him to relocate to Mogadishu. That in itself shows that even had there been any error of law regarding his return to Chula, such error was not material.”
On the possibility of assistance from the petitioner’s family, Lord Woolman referred to the decision of the FTT on that matter, which stated that he had a reasonable prospect of contacting them based on productions from the Red Cross and Red Crescent organisations. He concluded: “We see no basis in law to depart from that.”