Facts
The applicant was a national of Somalia and declared a refugee in 2008. She applied for family reunification for her husband, two sons and her elderly mother, who were said to be nationals of Somalia but all living in Ethiopia. The Minister requested the applicant to produce Somali passports or identity documents for her family members. This was for the purpose of assisting to verify the identities of the persons whom she said were her husband and children and to establish their family relationships, as between her and her children, and her husband as her children’s natural father. The Minister indicated that an identity document was required to establish that the applicant’s husband and the biological father of the children was the same person, and stated that DNA evidence may be sought to verify those relationships, if necessary. However, the Minister also had a general policy of refusing to accept Somali passports or personal identity documents as proof of Somali nationality.
Reasoning
According to Cooke J. the essential issue was whether the apparent decision of the Minister to insist upon the production of passports or identity documents in respect of the family members was reasonable or rational, when it was argued that the Minister’s policy was to reject by way of proof for the purposes of family reunification under Section 18 of the Refugee Act 1996, passports or personal identity documents issued to Somali nationals by Somali embassies abroad including in Addis Ababa, Ethiopia.
He found that the Minister had not actually refused to make a decision and that he had not delayed to such extent as would indicate a refusal to perform a public duty. The issue was rather that an impasse had been reached as to what forms of proof of identity and paternity the Minister was reasonably entitled to require of the applicant for the purpose of satisfying him that the applicant was validly entitled to the grant of family reunification and travel visas under Section 18(3) of the Refugee Act 1996.
Cooke J. held that where the Minister had not refused to exercise his public function, the Court could not grant a mandatory order compelling him to do so, and the Court could not accept there was any excessive delay or refusal where the applicant asked the Minister to postpone his decision because additional documents were being obtained.
The only matter on which the Court could, or should, give declaratory relief, was whether it was irrational or unreasonable for the Minister to require Somali passports when there is a clearly stated policy that they are not regarded as acceptable proof of identity. Cooke J. held that the requirement of the Minister that an original passport for the applicant’s husband be produced could not be said to be unreasonable or irrational. Given the requirements of Section 18 and the consequence for the State’s international obligations in issuing authorisations for international travel, the Minister was both entitled and obliged to satisfy himself that authorisations for family reunification and travel visas issued for that purpose are validly issued to persons who have the genuine family relationship claimed and that their identities have been authentically established.
Decision
He held that the Minister was entitled to demand reasonably verifiable proof that the applicant was the mother of the two sons and that the person she claimed was her husband was their natural father and DNA evidence may have to be sought to verify that ultimately. The Minister was entitled to be satisfied that the individuals who seek to enter the State are the same individuals who provided samples for the DNA evidence.
Although considerable doubt surrounds the authenticity of identity documents issued in the name of Somali nationals at foreign embassies, the Court did not consider it unreasonable or irrational for the Minister to insist on the presentation of such a passport when the applicant acknowledges it can be obtained.
Somali passports are not rejected outright but only as the sole means of establishing identity. Obtaining a passport was only one of a number of steps required to be taken in order to establish some verifiable basis for the identities and family relationships claimed. The degree of weight to be attributed to it ultimately would depend on the cumulative effect of other proofs and information offered including DNA tests, but the mere fact that passports are requested or suggested as part of the material the Minister wishes to consider did not mean that the request was irrational or unreasonable.
