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[2017] ZAWCHC 19
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M.A v Chairperson of the Refugee Appeal Board and Others (19483/2015) [2017] ZAWCHC 19 (28 February 2017)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
(Coram:
Holderness, AJ)
[Not Reportable]
Case No: 19483/2015
In
the matter between:
M.
A.
Applicant
and
THE
CHAIRPERSON OF THE REFUGEE
APPEAL
BOARD
First Respondent
MALEMATJA
MOHALE
N.O
Second Respondent
THE
REFUGEE STATUS DETERMINATION
OFFICER,
DALIWANGA GEORGE
N.O.
Third Respondent
THEMBI
NDLOVU
N.O.
Fourth
Respondent
THE
MINISTER OF HOME
AFFAIRS
Fifth Respondent
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT
OF HOME
AFFAIRS
Sixth Respondent
JUDGMENT
DELIVERED ON 28 FEBRUARY 2017
HOLDERNESS
AJ:
Introduction
[1] The applicant
applies, in terms of section 6 of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’),
for an
order reviewing and setting aside the first and third respondents’
decisions rejecting the applicant’s application
for refugee
status and asylum as unfounded, and, in terms of s 8(1)(c)(i)(aa)
of PAJA, for an order substituting the impugned
administrative
decision with one by the court declaring him to be a refugee and
granting him asylum in South Africa, as contemplated
by section 3 of
the Refugees Act 130 of 1998 (‘the
Refugees Act&rsquo
;).
[2] The Department
of Home Affairs, which is responsible for the administration of the
Refugees Act, abides
the decision of the court in respect of the
review and setting aside, but contends that if the impugned decisions
are set aside,
the court should not grant substitutive relief, but
should rather remit the matter to the Department for consideration
afresh.
Statutory
framework
[3] The preamble to
the
Refugees Act records
that ‘
South Africa has acceded to
the 1951 Convention Relating to Status of Refugees, the 1967 Protocol
Relating to the Status of Refugees
and the 1969 Organization of
African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa as well as other
human rights instruments, and has
in so doing, assumed certain obligations to receive and treat in its
territory refugees in accordance
with the standards and principles
established in international law’
.
[4]
Section 2
of the
Refugees Act incorporates
the international law principle of
non-refoulement
, which is articulated in Article 33 of
the 1951 Convention, as follows:
‘
No
Contracting State shall expel or return ('refouler') a refugee in any
manner whatsoever to the frontiers of territories where
his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group
or political
opinion
’
.
[5] The right to
lawful, fair and reasonable administrative action is entrenched in
our law in terms of section 33 of the Constitution,
[6] The
circumstances in which one determines whether an individual qualifies
for refugee status are set out in
Section 3
of the
Refugees Act, as
follows:
‘
Refugee
status
Subject to
Chapter 3, a person qualifies for refugee status for the purposes of
this Act if that person-
(a)
owing
to a well-founded fear of being persecuted by reason of his or her
race, tribe, religion, nationality, political opinion or
membership
of a particular social group, is outside the country of his or her
nationality and is unable or unwilling to avail himself
or herself of
the protection of that country, or, not having a nationality and
being outside the country of his or her former habitual
residence is
unable or, owing to such fear, unwilling to return to it; or
(b)
owing to external aggression, occupation,
foreign domination or events seriously disturbing or disrupting
public order in either
a part or the whole of his or her country of
origin or nationality, is compelled to leave his or her place of
habitual residence
in order to seek refuge elsewhere;’
[7]
According to the UNHCR Handbook
[1]
,
whether a person is a refugee is an objective fact, and not a
privilege to be accorded to those who deserve it:
‘
A
person is a refugee within the meaning of the 1951 Convention as soon
as he fulfils the criteria contained in the definition.
This would
necessarily occur prior to the time at which his refugee status is
formally determined. Recognition of his refugee status
therefore does
not make him a refugee but declares him to be one. He does not become
a refugee because of recognition, but is recognized
because he is a
refugee.’
[8]
In
Radjabu
v The Chairperson of the Standing Committee for Refugee Affairs
[2]
Justice
Binns-Ward stated that determining whether a person qualifies under
section 3(b) requires:
‘
(i)
an assessment by the relevant authority of the existence of
objectively ascertainable circumstances in the person’s country
of origin, and
(ii)
assuming that it is satisfied upon such assessment that such
circumstances correspond with any of those stipulated in the
definition, a decision whether their effect on the individual
concerned has been such as to force him or her to leave the place
where he or she ordinarily resided. The qualifying criteria thus
posit refugee status in the category concerned being determined
with
regard to the causative effect of a given situation on an individual.
The test is predominantly objective in character, but
the required
consideration by the relevant authority of the causative effect of
the circumstances involved on the person concerned
introduces a
subjective element
that demands
that the individual’s personal circumstances be taken into
account.’
(emphasis added)
[9] If the applicant
left the DRC of his own volition and was not compelled to leave, he
does not qualify for refugee status in
terms of
section 3(b)
of the
Refugees Act. As
noted in
Radjabu supra,
the assessed
credibility of the person claiming refugee status will be an
important determinant in the decision-making process.
Basis upon which
the applicant claims to be a refugee
[10] Turning now to
the applicant’s claim for relief declaring that he is a
refugee. The applicant contends that he is, objectively,
a refugee
who is entitled to South Africa’s protection in terms of both
section 3(a)
and
section 3(b)
of the
Refugees Act, because
:
10.1
he fled his country owing to his ‘
well-founded
fear of persecution
by reason of
his imputed political affiliation: having escaped from
both
a rebel controlled village
and
from government custody. He was
and remains vulnerable to pursuit by both forces’;
and
10.2
he was compelled to seek refuge elsewhere, ‘
owing
to a serious disturbance of
the
public order
in the eastern DRC,
encompassing a comprehensive and notorious failure of state
protection
.’
[11]
In addition to a refugee’s right to
non-refoulement,
international
refugee law also recognises that a person who left his or her country
for other reasons might
become
a
refugee
sur
place
if
conditions in the country of origin are such that it is unsafe to
return
[3]
. It appears to now be
commonly accepted that conditions in the eastern DRC are such that no
state which has adopted the international
treaties, referred to
above, can lawfully return a person there. This is dealt with more
fully hereunder.
PROCEDURE TO BE
FOLLOWED IN IDENTIFYING AND PROTECTING REFUGEES IN SOUTH AFRICA
Roles of the
Refugee Reception Officer and the Refugee Status Determination
Officer
[12] I now turn to
the procedures which the respondents were required to follow. The
Refugees Act gives
effect to South Africa’s international law
obligations to:
12.1 receive asylum
seekers;
12.2 inform them of
their rights;
12.3 assist them to
apply for asylum;
12.4 conduct an
enquiry which is both supportive and inquisitorial; and
12.5 afford
protection to those who are, objectively, refugees.
[13]
Section 21(2)
of the
Refugees Act, read
with the regulations to the Act, requires
the relevant refugee reception officer (‘RRO’) to ensure
that the application
form has been properly completed and that the
applicant received the necessary assistance for this purpose,
including adequate
interpretation. The RRO was also required to
conduct whatever enquiry he considered necessary to verify the
information furnished
in the application. In terms of the
statutory provisions the application must then be passed on to a
refugee status determination
officer (‘the RSDO’).
[14] In terms of
s
24
of the
Refugees Act, the
RSDO was required
inter alia
to
ensure that the applicant fully understood the procedures, his rights
and responsibilities and the evidence presented, and to
have due
regard to the applicant’s rights set out in section 33 of the
Constitution.
[15]
It has been repeatedly stated that because refugees are vulnerable
and have often survived great trauma and hardship, may be
intimidated
by those in power, are unlikely to be proficient in English, and
seldom have official proof of their claims, the interview
conducted
by the RSDO is required to be supportive and inquisitorial. The RSDO
shares with the asylum seeker the duty to produce
evidence in support
of his claim and must generally give him the benefit of the doubt.
[4]
Role of the
Refugee Appeal Board
[16]
An asylum seeker whose application is rejected as ‘
unfounded
’
may
lodge an appeal with the Refugee Appeal Board (‘RAB’).
The RAB is constituted of at least three persons, a majority
of whom
constitute a quorum. Appeals conducted by one person sitting alone
are unlawful, and the resultant decisions reviewable.
[5]
[17] The RAB is
established in terms of
s 12
of the
Refugees Act and
is required in
terms of
s 12(3)
to function without any bias and to be independent.
The parties before it are the asylum seeker and the Department of
Home Affairs.
[18] The RAB
conducts an appeal in the wide sense, and is required to determine
whether the decision reached by the RSDO was correct.
An asylum
seeker is entitled to be present during the appeal proceedings, and
to be heard by the RAB.
Factual
background
[19] I shall now set
out the particular set of facts in the present matter, whereafter I
will set out the review grounds and the
legal principles governing
substitution applications, before determining whether a proper case
has been made out for substitution
in terms of
section
8(1)(c)(ii)(aa)
of PAJA.
[20] The applicant
is an adult male social worker, currently working as a security
guard, born on 14 February 1967 in Sandoa, a
village in Katanga
Province situated between Tshimbalanga and Musumba in the DRC. The
applicant moved with his family to Lubumbashi
when he was three years
old. He grew up and attended school in Lubumbashi.
[21] The applicant’s
home language is Swahili. He is also fluent in Ruund, French and
Lingala. He only started to learn English
after arriving in South
Africa.
[22] In 1995 the
applicant was employed by the Minister of Youth, Sport and
Culture/Leisure as a social worker. In 1997 he was transferred
by his
employer to Goma in the Eastern DRC. The applicant regards Goma as
his habitual place of residence and this does not appear
to be
disputed by the respondents. As set out in the applicant’s
founding affidavit:
22.1 Goma is the
capital of the North Kivu Province, and is located on the northern
shore of Lake Kivu, just one kilometer from
the border with Rwanda,
close to the Rwandan city of Gisenyi;
22.2 Goma was at the
epicenter of the First Congo War, which ended in 1997 with the
overthrow of Mobutu’s regime by Laurent
Kabila;
22.3 Children were
orphaned in large numbers during the First Congo War, and required
social aid. This was the reason for the applicant
being stationed in
Goma as a social worker;
22.4 Goma was and
remains an unstable area surrounded by forest, characterised by
violence, and occupied by armies, rebel militias
and non-state armed
groupings comprising nationals of the DRC and bordering countries.
[23] In 2002 the
applicant married his wife, Irene, who moved from Lubumbashi to live
with him in Goma. Their two daughters were
born in 2002 and 2004, and
a son was born in South Africa in 2009.
[24] In 2005 the
applicant and certain colleagues reported financial mismanagement by
their head of department, a Mr Kitoko (‘Kitoko’),
to the
head office in Kinshasa. Later that year, the applicant was returning
home by motorbike when he was ambushed and assaulted
by five men who
proceeded to interrogate him about his work in Goma. He suspected
that this attack was at the instance of Kitoko,
and fearing for the
safety of his family, he sent his wife and children back to
Lubumbashi in early 2006.
[25] According to
the applicant, unbeknownst to him, his family never reached
Lubumbashi. War was raging in the eastern DRC at the
time,
communications were not operative and they lost contact completely.
He later established that, together with many other refugees
fleeing
the DRC, they had made their way to South Africa, where the applicant
was eventually reunited with them in 2009.
[26] In late 2007,
the applicant was assigned, together with two colleagues, to Murenje,
a village 30 kilometres north of Goma,
where they were responsible,
in collaboration with NGO humanitarian aid agencies, for the welfare
of orphaned, mostly homeless
children in the village. The applicant
kept rented accommodation in Goma, and travelled between Murenje and
Goma by bicycle.
[27] Shortly
thereafter Murenje was attacked and occupied by the Goma-based
anti-Kabila rebel movement known as the Rally for Congolese
Democracy
(colloquially known as RCD-Goma). The applicant avers that the rebels
assumed full military control of the village, which
was placed under
tight security, and no-one was permitted to leave. The applicant and
his colleagues, as government employees,
kept a low profile. Anybody
who tried to escape, or who showed any resistance to the rebels, was
killed.
[28] After
approximately six months, the applicant and his two colleagues
managed to escape Murenje by hiding in a truck which had
delivered
food aid from the United Nations World Food Program. He made his way
back to Goma, however he was then arrested in Goma
and after being
detained for an indeterminate time in police holding cells, was
transferred to the offices of the National Intelligence
Agency
(Agence Nationale de Renseignements
or ANR) whose role it is
to ensure the internal and external security of the State.
[29] The ANR
suspected the applicant of being involved with the rebel forces and
interrogated him regarding events in Murenje. The
applicant was
released after a month. Three months later he was re-arrested by the
ANR. The applicant alleges that during this
second incarceration, he
feared for his life as he was assaulted whilst in detention. He
states in paragraph 21 of his founding
affidavit that several
prisoners would be called out by name and were then never seen again.
[30] Towards the end
of 2008 one of the ANR agents agreed to help the applicant escape. He
hid in the guard’s car to escape
the prison complex and was
taken home to collect some of his personal belongings. Under cover of
darkness he walked to the shores
of Lake Kivu, and obtained passage
on a small fishing vessel south, until he reached Lake Tanganyika,
after travelling afoot through
the villages between the southern end
of Lake Kivu and the northern tip of Lake Tanganyika. He reached the
Tanzanian border and
travelled by truck through Zambia and Zimbabwe,
to South Africa.
[31] The applicant
estimated that he left the DRC on 4 December 2008 and arrived at Beit
Bridge on 14 December 2008. He first attempted
to apply for asylum in
Pretoria, however the queues were long and there was a lot of
fighting. He then travelled by bus to Cape
Town to try and apply for
asylum. Upon arrival in Cape Town he worked in a scrap metal business
for a few weeks to earn some money
to survive.
Application for
temporary asylum
[32] On 2 February
2009 the applicant formally applied for a temporary asylum seekers
permit. He was not offered any assistance,
either by an RRO, or by an
interpreter, and the procedure was not explained to him nor was he
informed of his rights. On the B1-1590
which the applicant completed,
there is a note under the heading ’Preliminary comments by
Refugee Reception Officer’,
that the applicant required the
services of an interpreter.
[33] In response to
the question on the application form ‘Why are you applying for
asylum’, the applicant’s answer
was,
verbatim,
the
following:
‘
I
am from the war zone, so there are not the opportunity of to stay in
peace. Because I was a functionary or civil servant. So,
if the
rebels entry in city, they attack all or any local authority
employee. One day I was go on an assignment at 30km of Goma,
I was
arrested by the rebels troup. I was stay with them six months and I
was get a occasion for to flee from there and I was running
away. I
was back to Goma sicing. Now, in my country, my city, the secret
service of government to pursue me because I am from the
rebels zone.
I am in insecurity at any time and anywhere on my own country. If the
peace come, I can back home.’
[34] In his founding
affidavit the applicant’s explanation for not mentioning his
arrest and imprisonment by the ANR was that
he feared this would
compromise his application for asylum. I am satisfied that, in the
circumstances, this is reasonable explanation
for such omission.
[35] The applicant
was issued with a temporary asylum seeker permit, which he renewed
periodically, and was reunited with his family.
The RSDO
interview and decision
[36] The applicant
was interviewed by the RSDO on 17 May 2011. He was not offered the
assistance of an interpreter and the RSDO
was not interested in the
reasons why he left the DRC. Curiously, the RSDO expressed annoyance
at the fact that the applicant had
studied in two places, namely Goma
and Lubumbashi. On the same day, he returned his decision,
namely that in terms of
section 24(3)(C)
of the
Refugees Act, the
applicant’s application was rejected as unfounded.
[37] The applicant
states that the RSDO’s appears to have complied the interview
notes relating to his application ‘
partly from my
application form and partly from his own imagination’,
as
he never asked the applicant about his skills, nor about his criminal
convictions or military service.
[38] The reason
given by the RSDO for the decision is as follows:
‘
You
claimed that you were born in Sadoa village in Katoa province and you
were studying in Lubumbashi from 1987 to 2003. You also
mentioned
that you were working in Goma from 1998 to 2008. You have decided to
leave your country because you were arrested by
the rebels for six
months 30Km from Goma. You again mentioned that after fleeing the
rebels you were than accused of working for
the rebels by the secret
service. After considering all the relevant fact into your
application I have come into conclusion that
you claim does not call
to question any material fact and country of information is not
consistent on this matter because it is
unlikely that you can study
in Lubumbashi from 1987 to 2003 (sixteen years) and again to be able
to work in Goma from 1998 to 2008
(ten years) eveven though it is
fact that the political instability and insecurity in Goma. You could
also go back to your place
of birth Katanga which is peacefull and
under government control. Inlight of the above well founded fear does
not apply.
(sic)’
[39] The decision is
not entirely incoherent and the reasons given for the decision are
neither clear, nor cogent. Had the RSDO
properly undertaken an
inquisitorial role, he would have ascertained that the applicant was
a government employee deployed to Goma
(not by choice), and then
deployed to a rebel occupied village from which he had to flee. Given
the benefit of the doubt, it is
clear that the applicant was
effectively caught between the RCD-Goma and ANR.
[40] The applicant’s
explanation for not mentioning his capture, imprisonment and assault
at the hands of government forces
was because he feared that it would
jeopardise his application. This is precisely why the RSDO was
enjoined to adopt an inquisitorial
approach to ensure that he had the
full story before simply rejecting the application as unfounded.
Appeal to the RAB
[41] Duly assisted
by the UCT Law Clinic, the applicant lodged an appeal against the
RSDO’s decision with the RAB.
[42] In terms of
section 13(1)
of the
Refugees Act,
t
he Appeal Board must
consist of a chairperson and at least two other members, appointed by
the Minister with due regard to a person's
suitability to serve as a
member by virtue of his or her experience, qualifications and
expertise and his or her capability to
perform the functions of the
Appeal Board properly, and at least one of the members of the Appeal
Board must be legally qualified.
It appears from the written decision
of the RAB that the applicant’s appeal was only heard by one
member, Mr. Malematja Mohale,
the second respondent (‘Mohale’).
[43] In the Notice
of Intention to Lodge an Appeal filed on behalf of the applicant, it
was recorded that the application wished
to appeal the decision of
the RSDO on the ground set out in
section 3(2)(b)
of the
Refugees
Act, namely
that he was compelled to remain outside his/her habitual
place of residence due to events seriously disturbing the peace.
[44]
The burden of proof is on the applicant to show that he is entitled
to refugee status, however if he is unable to support his
statements
by documentary or other proof, if his account appears credible, he
should, unless there are good reasons to the contrary,
be given the
benefit of the doubt.
[6]
[45] The applicant
was assisted during the appeal by Monique Schoeman of the UCT Law
Clinic, however his rights were not explained
to him and the
interpreter did not play any role during the appeal proceedings. The
interview proceeded in English, a language
in which the applicant is
not proficient.
[46] In the
applicant’s heads of argument for the appeal, the facts set out
are consistent with the facts alleged in the founding
affidavit, save
that in the heads of argument it is alleged that after escaping from
the ANR he hid in the bushes for two weeks
before fleeing the DRC.
This anomaly in his version may be the result of the language barrier
or a miscommunication between the
applicant and his legal
representative. I am not persuaded that his version falls to be
disregarded because of minor inconsistencies.
[47] A delay of four
years elapsed until the applicant received the RAB’s decision,
dismissing his appeal, on 5 June 2015.
[48] In terms of
section 26(3)
of the
Refugees Act:
‘
(3)
Before reaching a decision, the Appeal Board may-
(a)
invite the UNHCR
representative to make oral or written representations;
(b)
refer the matter
back to the Standing Committee for further inquiry and investigation;
(c)
request the attendance of any person who, in its opinion, is in a
position to provide the Appeal Board with relevant information;
(d)
of its own accord make further inquiry or investigation;
(e)
request the applicant to appear before it and to provide any such
other information as it may deem necessary.’
[49]
As to the standard of proof, in general the applicant’s fear
should be considered to be well-founded if he can establish,
to
a reasonable degree,
that
his continued stay in his country of origin has become
intolerable.
[7]
The
applicant is not required to prove a ‘real risk’ on a
balance of probabilities. The appropriate standard
is ‘a real
possibility of persecution’.
[8]
[50] It appears that
the RAB was aware of the facts pertaining to the applicant’s
claim, namely that he was deployed by the
government to a rebel
controlled village and was subsequently arrested and detained by the
ANR because he had moved from a government
controlled area to a rebel
controlled area.
[51] The RAB noted
that the applicant’s attorney argued that the applicant must
establish to a reasonable degree that he has
a well-founded fear of
persecution, and that because international law does not regard
asylum seeking as a last resort, the concept
of internal flight
alternative should not be invoked to undermine the right to seek
asylum and protection against
refoulement.
[51] Pertinently, it
was recorded that:
51.1 the applicant
moved to Goma which he considered to be his habitual place of
residence, as he had resided there for a period
of ten years;
51.2 that he was
considered to be a member of the rebels by both the police and the
ANR, and was arrested twice; and
51.3 that the agents
of persecution in this case are both state (the police and the ANR)
and non-state agents (the rebels).
[52] The RAB
accepted that the standard of proof which the applicant was required
to meet was a reasonable possibility of risk,
which had to be
considered in light of all the circumstances.
[53] In summary, the
reasons for the RAB’s decision not to uphold the appeal against
the decision of the RSDO were as follows:
53.1 It is
implausible that the authorities would deploy the applicant to work
in Murenge and then later him saying he has contacts
with the rebels
purely because in undertaking his work he was in an area occupied by
the rebels;
53.2 Even if he was
arrested as he alleges, which is highly unlikely, the authorities in
Goma would know about innocent civilians
who were caught up in
Murenge and the authorities who deployed the applicant to work in
Murenge should have come to the applicant’s
help;
53.3 The applicant’s
claim that he was arrested twice by the authorities does not reach
the threshold required for sustained
or systemic violation of basic
human rights, and it appears that if he indeed was arrested, he was
rather a victim of random violence;
53.4 There is no
evidence of anything which will set the applicant apart to the extent
that he will be ‘selected for persecution’
if he goes
back to his country;
53.5 Regarding
whether it will be safe for the applicant to return to the DRC, in
light of events ‘seriously disturbing or
disrupting public
order’, the RAB found that whilst Goma remains unsafe, the
applicant lived in Lubumbashi and could safely
have remained there
with his family, who are still residing there;
53.6 The applicant
does not have a political profile so it is highly unlikely that
anyone will have an interest in him if he returns
to his country; and
53.7 It is unlikely
that the applicant will face a reasonable possibility of persecution
if he returns to his country of origin,
and considering ‘objective
country information’ about the DRC there is no basis for the
applicant’s claim in
terms of
section 39b)
of the
Refugees Act.
Alleged
inconsistencies in the applicant’s version
[54] In the
answering affidavit filed by the respondents, which was deposed to by
the fourth respondent, the following inconsistencies
or
improbabilities in the applicant’s version were pointed out:
54.1
In the application form for temporary asylum, the applicant never
alleged that he was arrested but stated that the ‘
secret
service of government pursue me because I am from the rebel zone’.
54.2 Regarding the
allegations that an ANR agent helped him to escape custody, the
question posed by the respondent is why an ANR
agent would, at great
personal and professional risk, help a low-level government employee
to escape police custody;
54.3 In the founding
affidavit the applicant alleges that after helping him to escape from
prison, the ANR agent transported him
home to collect some
belongings, and he then fled the DRC. In his heads of argument in the
appeal it is alleged that after he had
escaped he hid in the bushes
for two weeks before deciding to come to South Africa.
[55] The respondent
contended that the cast doubt on the applicant’s version by
these contradictions leads one to believe
that his original stance,
that he was not arrested, is correct.
The applicant’s
explanation regarding the alleged inconsistencies in his version
[56] In his replying
affidavit the applicant avers that the allegations that he never hid
in the bushes for two weeks after he escaped
and that these
allegations in the heads of argument were not in accordance with his
instructions to his legal adviser, and in any
event are not contained
in any statement or affidavit signed by him.
[57] The applicant
points out that to the extent that there were perhaps any
inconsistencies between his version before the RSDO
and the version
set forth in the heads of argument, which may well have been the
result of interpretation difficulties, the inquisitorial
nature of
the board’s role in the proceedings required them to make
adequate enquiries to resolve any such confusion.
[58] Regarding the
criticism of the RSDO for not asking the applicant about his skills
or criminal record, the applicant avers that
the fourth respondent,
the deponent to the answering affidavit has misconstrued his
criticism, which is not that the RSDO did not
ask him about such
skills, but rather that not only did he not ask, but that he recorded
answers to these questions without having
asked them in the first
place.
JUDICIAL REVIEW
Grounds of review
[59] The review and
setting aside of the RSDO’s decision is not opposed by the
respondents. I am satisfied that a proper case
has been made out for
the review and setting aside of the decision, for the following
reasons:
59.1 The applicant
did not receive the required support and assistance when he first
applied for asylum in 2009. He was not interviewed
by a RRO, the
relevant procedures were not explained to him, he was not advised of
his rights and he was not provided with the
services of an
interpreter, which he clearly required. As appears from the
Eligibility Determination Form for Asylum Seekers, annexed
to the
founding affidavit as annexure ‘M2’, the second
respondent was fully aware that the applicant required the services
of an interpreter;
59.2 more than two
years elapsed before the applicant was called to an interview with
the RSDO, at which the RSDO failed dismally
in his obligation to
conduct the enquiry in a supportive and inquisitorial manner. The
RSDO’s decision is incoherent, misquotes
the law, and is made
without proper foundation;
59.3 A further two
years elapsed before the hearing before the RAB, at which the
inquorate board, consisting of a single member
(it is not known
whether he is legally qualified as envisaged in
section 13(2)
of the
Refugees Act), without
considering objective facts about the
applicant’s country of origin, and without making the necessary
finding of facts, or
even credibility findings, rejected the
applicant’s version of events out of hand as being
‘implausible’; and
59.4 The applicant
was ultimately only informed of the outcome of his appeal on 11 May
2015, six and a half years after he first
applied for asylum.
[60] The applicant
attacks the procedure adopted by and the decision of the second
respondent as the sole member of the RAB, on
the following grounds:
60.1 the written
decision includes incorrect facts taken from the improperly completed
B1-1590 form, including reference to the
‘initial interview’,
whereas the applicant was in fact never interviewed by an RRO, and
includes reference to facts
which were not canvassed during the
hearing before the RSDO.
60.2 The
extraordinary delay from the date of the appeal hearing (September
2011) and the date of the decision (June 2013), which
probably
contributed to the poor quality of the decision;
60.3 The incorrect
burden of proof is repeated, namely ‘real risk’, as
opposed to ‘reasonable possibility of harm’;
60.4 The second
respondent claimed to have regard to ‘objective background
information, which is neither identified nor disclosed
and in respect
of which the applicant was not invited to make representations;
60.5 The second
respondent sets out several legal propositions without linking any
such propositions to the applicant’s claim,
before irrationally
concluding that the applicant’s story is ‘implausible’,
and that it would be safe for him
to return to Lubumbashi;
60.6 He failed to
properly apply his mind to the applicant’s persecution claim
under section 3(a) of the Act or to his claim
under section 3(b) of
the Act;
60.7 He ignored the
applicant’s right to remain with his family, who remain asylum
seekers in South Africa;
60.8 He bases
certain conclusions and inferences on unfounded assumptions and
opinions, which were not disclosed to the applicant
nor to his lega
representative at the hearing, and with regard to which they were not
given an opportunity to comment; and
60.9 He ignores
relevant facts including the commonly known fact of the dangerous
conditions in the eastern DRC in general, and
Lubumbashi prisons in
particular, and the risks which the applicant will face if he is
forcibly returned to the DRC.
Does the RAB’s
decision fall to be set aside?
[61] It is clear
from the record that the RAB was not properly constituted and on this
basis alone the appeal procedure was fatally
flawed and falls to be
set aside.
[62] Regarding the
appeal findings, it is apparent from the numerous reported and
unreported decisions involving judicial reviews
in refugee matters,
that all too often the approach by the relevant decision makers is
sceptical and cynical, and that, rather
than giving applicant’s
the benefit of the doubt in the absence of good reasons not to do so,
the evidence given is frequently
rejected, even though there were no
facts to controvert it.
[63] It has been
said time and again that the burden of proof applicable in civil
proceedings is inappropriate in refugee cases,
that the enquiry has
an inquisitorial element, that a lower standard of proof is required,
and that the relevant body should liberally
apply the benefit of
doubt principle.
[64] Regarding the
first issue, namely whether the applicant has a well-founded fear of
persecution, there are several factual inaccuracies
in the RAB’s
decision, such as the fact that his wife and children are living in
Lubumbashi, when they are in fact living
with him in Cape Town, and
that his manager intervened when he was arrested by the police,
resulting in his subsequent release.
[65] The RAB
accepted that the applicant only went to Murenge on the orders of his
employer (a government department), but states
that ‘
it is
implausible that the authorities can deploy the appellant to work in
Murenge and then later arrest him saying that he has
contacts with
the rebels purely and simply because during the course of his work
the area happened to be occupied by the rebels.’
[66] A number of
illogical and unsupported assumptions follow. For example, the view
taken was that even if the applicant was arrested,
the authorities in
Goma would know about innocent civilians caught up in Murenge and the
authorities who deployed the applicant
to Goma would come to his aid.
This of course presupposes that the applicant’s employer had
knowledge of his arrest, and
if it did have such knowledge, it would
be inclined to intervene on his behalf and that such intervention was
likely to secure
his release.
[67] There is no
evidence of the government authorities coming to the aid of civilians
unwittingly trapped in rebel zones, nor was
there any countervailing
evidence regarding the human right abuses which the applicant alleges
are ongoing at the prison in the
DRC. In any event, the applicant’s
evidence shows that not only did the government not come to his
assistance, but he was
detained on mere suspicion that he was
associated with the rebels.
[68] Ignoring the
political instability and unrest in the eastern DRC, which is well
known and has caused serious disturbance or
disruption to public
order, and the peril which the applicant may well face if he returned
and was tracked down by the rebels or
the government authorities, the
RAB found that the applicant’s claim that he was twice arrested
does not reach the threshold
required for sustained or systemic
violation of basic human rights. The board concludes it ‘
lacks
the quality of a persecution required for a convention reason. It
appears that he was rather a victim of random violence,
if he was
indeed arrested.’
[69]
The phrase “well-founded fear” contains both a subjective
and objective requirement. There must be a state of mind,
fear of
being persecuted, and a basis which was well-founded for this
fear.
[9]
[70]
I do not regard the applicant’s story as being either fanciful
or far-fetched. It lacks details in certain respects,
for example the
name of the prison, or the reason why an ANR agent would at risk to
himself assist the applicant to escape from
a state prison. There
were however no objective facts put up to contradict his version of
what transpired prior to his flight to
South Africa, and it is
apparent that the RAB did not avail itself of its rights in terms
of
section
26(3)(d) and/or (e) to make further inquiry or investigation or
to request the applicant to appear before it and to
provide any such
other information as it may deem necessary.
[71]
The applicant was held against his will in a rebel controlled
village, he was arrested twice and assaulted in a prison from
which
other prisoners frequently disappeared, and where human rights abuses
were rife, he then escaped at great personal risk and
fled to South
Africa where he has sought asylum since 2009.
[72]
To my mind these events cannot be described as ‘random
violence’. If one accepts that the applicant had to escape
a
rebel occupied village and was subsequently arrested twice on
suspicion of being involved with the rebels from who he had escaped,
it cannot be said that his fear of persecution is not well founded,
from both a subjective and objective standpoint.
[73] Regarding the
second issues in, namely whether in terms of
s 3(b)
of the
Refugees
Act and
in light of events seriously disturbing or disrupting public
order in the DRC the applicant will be safe if he returns there, the
second respondent formed the view that it would not be unreasonable
for the applicant to return to Lubumbashi, which is relatively
peaceful, because according to his claim that it where he spent most
of his life, and his family remains there.
[74] It is correct
that the applicant grew up and studied in Lubumbashi, however the RAB
failed to take cognisance of the fact that
he resided in Goma and
that this was his place of habitual residence since 1997. As set out
more fully below, internal flight alternative
(‘IFA’) is
not an alternative for a
section 3
(b) claim for refuge. Furthermore,
it is not correct that his family is presently residing in
Lubumbashi. They live in South Africa
with the applicant.
[75] The second
respondent states that considering objective country information
about the DRC, there is no basis for the appellant’s
claim in
terms of
section 3(b)
of the
Refugees Act. The
RAB does not state
what objective information it has had regard to, nor what the
information discloses. This too appear to be a
cut and paste
allegation without factual foundation.
[76]
As to the question whether, in terms of
s 3(b)
, it is a bar to
the granting of asylum that the applicant could have found refuge
elsewhere in his own country, in
Katabana
v
Refugee Appeal Board & Others
[10]
Justice
Davis stated that the IFA does not apply to
s 3(b)
of the
Refugees Act.
[77
] The respondents
do not appear to dispute that it would be unsafe for the applicant to
return to Goma, which the RAB acknowledge
that the applicant regards
Goma as being his habitual place of residence, and if the IFA
alternative is excluded, then to my mind
the applicant is entitled to
refuge in South Africa in terms of
section 3(b)
of the
Refugees Act.
Application
to strike out
[78]
The applicant applied for certain averments to be struck out of the
respondent’s answering affidavit, which was deposed
to by the
fourth respondent, the manager of the Cape Town Refugee Office, Ms
Ndlovu (‘Ndlovu’).
[79]
The applicant objects Ndlovu’s evidence on the basis that she
was not involved at any stage in the making of any of the
decisions
under review, and her affidavit is argumentative. The applicant
applies for the irrelevant speculation and opinion evidence
to be
struck out.
[80]
The respondents contend that the application for the striking out of
certain portions of the affidavit is unnecessary and is
irregular
inasmuch as it does not comply with Uniform Rules 6(11) and 6(15),
and, more fundamentally, the applicant has failed
to show prejudice
which it is required to show in order to succeed with its application
to strike out.
[81]
The respondents aver that the reason for the filing of the answering
affidavit was to highlight inconsistencies in the applicant’s
version. The respondents’ view is that the applicant’s
version is unsupported by any objective facts, and relies on
bald
statements which also amount to self-corroborating evidence.
[82]
Rule 6(11) provides that interlocutory and applications incidental to
pending proceedings may be brought on notice supported
by such
affidavits as the case may require. Rule 6(5) provides that the court
may on application order to be struck from any affidavit
any matter
which is scandalous, vexatious or irrelevant, with an appropriate
order as to costs. The court may not grant the application
unless it
is satisfied that the applicant will be prejudiced if the application
is not granted.
[83]
The applicant did not file an interlocutory application to strike out
the offensive passage, but merely asked for such relief
in the body
of his replying affidavit. I am persuaded by the respondent’s
argument that the applicant failed to properly
comply with rule
6(11), read with rule 6(15). The applicant did not seek condonation
for his failure to comply with the relevant
sub-rules, and in any
event to my mind he did not show that he would be prejudiced if the
application was not granted.
[84]
The application to strike out certain passages from the answering
affidavit is accordingly refused.
Substitution
in terms of
s8(1)(c)(ii)(aa)
of
PAJA
[85]
The
power of substitution conferred by
s8(1)(c)(ii)(aa)
of
PAJA is one to be exercised only in exceptional circumstances
and when, upon a proper consideration of all the relevant
facts, a
court is persuaded that the decision to exercise the power should not
be left to the designated functionary. Questions
such as bias,
incompetence, whether the relief sought will be a foregone conclusion
if the matter is remitted.
[86]
The
relevant principles were succinctly stated by Heher JA in
Gauteng
Gambling Board v Silverstar Development Ltd and Others
[11]
:
86.1
The power of a court on review to substitute or vary administrative
action or correct a defect arising from such action depends
upon a
determination that a case is 'exceptional';
86.2
a case is exceptional when, upon a proper consideration of all the
relevant facts, a court is persuaded that a decision to
exercise a
power should not be left to the designated functionary;
86.3
In order to give full effect to the right which everyone has to
lawful, reasonable and procedurally fair administrative action,
considerations of fairness also enter the picture. There will
accordingly be no remittal to the administrative authority in cases
where such a step will operate procedurally unfairly to both
parties. As Holmes AJA observed in Livestock and Meat
Industries Control Board v Garda
1961
(1) SA 342
(A)
at
349G
'.
. . the Court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and . . . although
the
matter will be sent back if there is no reason for not doing so, in
essence it is a question of fairness to both sides''.
See
also Erf One Six Seven Orchards CC v Greater Johannesburg
Metropolitan Council (Johannesburg Administration) and
Another
[1998] ZASCA 91
;
1999
(1) SA 104
(SCA)
at
109F - G.
86.4
Considerations of fairness may in a given case require the court to
make the decision itself provided it is able to do so.
[87]
An administrative functionary that is vested by statute with the
power to consider and approve or reject an application is
generally
best equipped by the variety of its composition, by experience, and
its access to sources of relevant information and
expertise to make
the right decision. The court typically has none of these advantages
and is required to recognise its own limitations.
[12]
[88]
In
Mubala
v Chairperson of the Standing Committee for Refugee Affairs and
Others
the
court noted that d
etails
of the violence and the destabilisation in the eastern DRC is well
documented as it has been ongoing for many years causing
thousands of
citizens to flee the DRC. In
Van
Gaderen N.O. v RAB and Others
[13]
the
court held that the DRC was a country in turmoil and that the Refugee
Appeal Board erred in its finding that the situation in
the DRC did
not pose a danger to the applicants.
[89]
In November 2011 this court in
Katshingu
v Chairperson Standing Committee for Refugee Affairs and Others
,
an unreported judgment
[14]
,
considered reports regarding the social and political turmoil and
refugee problem in the Eastern DRC, in granting an order according
refugee status and asylum.
[90]
The first consideration is thus whether the court is in as good a
position as the administrator to make the decision. In other
words,
was the administrator’s expertise or special expertise required
to make a decision? Does the court have all the necessary
information
to make a decision?
[91]
If the court is in as good a position, the next question is whether
the result is a foregone conclusion. Put differently, if
there could
only be one proper decision.
[92]
In determining whether exceptional circumstances exist, delay,
incompetence and bias are other factors which can be taken into
account if the court is in as good a position and the result is a
foregone conclusion. The court may also take into account that
remittal would involve further delays and costs, particularly where
there have already been substantial delays.
[93]
The overarching consideration is fairness to all parties concerned,
and the need to balance the substitution remedy against
separation of
powers concerns.
[94]
Even where there are exceptional circumstances, a court must be
satisfied that it would be just and equitable to grant an order
of
substitution. Substitution remains an extraordinary remedy and
remittal is almost always the prudent and proper course.
[15]
[95]
In the present application, the question should be framed as follows:
Are there circumstances justifying a refusal to grant
the applicant
refugee status?
[96]
It appears that the sole basis upon which the substitution order is
opposed by the respondents is that it will effectively
deprive the
first, second and / or third respondents from fulfilling their
legislative mandate to make decisions such as whether
the applicant
is a refugee or not.
[97]
To my mind this is not a compelling basis for opposition to
substitutive relief being granted. The respondents have failed
to
fulfil their legislative mandate at every stage of the applicant’s
application.
[98]
I am persuaded by the applicant’s argument that this is an
exceptional case in which substitutive relief is appropriate,
because
of the following:
98.1
It is more than seven years since the applicant arrived in South
Africa and first sought asylum. There have been inordinate
and
unjustified delays between when he first applied for asylum in 2009
and when the decision of the appeal board was made in June
2013;
98.2
The applicant and his family are settled in Cape Town and their
youngest child was born here. To remit the matter and risk
further
procedural delays would unfairly infringe on the applicant’s
right to have certainty regarding his legal status,
and the incumbent
benefits this would give him, and on his right to family life;
98.3
The applicant’s application for asylum has been beset by
procedural obstacles and delays at every step. He has not been
afforded a fair hearing either by an RRO (he was not even interviewed
by an RRO), nor by the RSDO, where he was not given the services
of
an interpreter when he clearly needed one, and at the RAB which was
not
inter alia
properly
constituted.
98.4
The facts underpinning the applicant’s claim for refugee status
have been clearly stated both before the RAB and in the
founding
affidavit filed in this matter, and it is now merely a question of
applying the relevant legal principles in determining
whether the
applicant is in fact a refugee;
98.5
It appears to be notorious that the eastern DRC, which was the
applicant’s habitual place of residence, is unstable and
unsafe, and as the applicant’s uncontroverted evidence is that
he was caught between State and rebel forces, he is entitled
to
refuge in terms of either section3(a) or
section 3(b)
of the
Refugees
Act; and
98.6
In the peculiar circumstances of this case and in accordance with the
non- refoulement
principle,
it would be incompatible with the
Refugees Act to
force the applicant
to return to the eastern DRC.
[99]
If this matter were to be remitted, it is difficult to see, as was
the case in the
Katabana
matter
supra,
what other facts
respondents can raise to rebut the applicant’s evidence,
particularly as they were not able to produce any
facts in their two
decisions referred to above.
[100]
In all the circumstances I consider that there are exceptional
circumstances in this case and that the interests of justice
dictate
that this court should make the decision to declare the applicant to
be a refugee.
[101]
I accordingly make the following orders:
a)
To the extent that it
is necessary, the third respondent’s decision of 17 May 2008,
rejecting the applicant’s application
for refugee status and
asylum as ‘unfounded’ is reviewed and set aside;
b)
The decision of the
Refugee Appeal Board dated 11 June 2013 dismissing the applicant’s
appeal against the decision by the
third respondent in terms of
section 24(3)(c)
of the
Refugees Act 130 of 1998
to reject the
applicant’s application for refugee status as ‘unfounded’
is reviewed and set aside.
c)
In terms of section 8(1)(c)(ii)(aa) of the Promotion of
Administration of Justice Act 3 of 2000, the aforementioned decision
of the Refugee Appeal Board is hereby substituted with a decision
setting aside the decision of the third respondent and substituting
it with a decision in terms of
section 24(3)(a)
of the
Refugees Act
granting
asylum to the applicant.
d)
The fourth respondent
is directed to issue the applicant with a formal written recognition
of refugee status as provided in
section 27(a)
of the
Refugees Act
read
with the provisions of regulation 15 of the Refugee Regulations
(Forms and Procedure), 2000 published in GN R366 in GG 21075 of
6
April 2000, as amended by GN R938 in GG 21573 of 15 September 2000,
within 10 days of the service upon her of this Order; and
e)
The fourth, fifth and
sixth respondents shall pay the costs of the application, jointly and
severally.
M
HOLDERNESS
Acting
Judge of the
High
Court
APPEARANCES
For
the Applicant: Adv S Harvey
Instructed
by: UCT Refugee Rights Clinic
For
the Fourth, Fifth and Sixth Respondents: Adv A Nacerodien
Instructed
by: Office of the State Attorney
Date
of Hearing: 29 November 2016
Judgment
delivered on: 28 February 2017
[1]
UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating
to the
Status of Refugees
HCR/IP/4/Eng/Rev.1
Reedited
Geneva
1992 (‘the UNHCR Handbook’), paragraph 28
[2]
(8830/2010)
[2014] ZAWCHC 134
;
[2015] 1 All SA 100
(WCC) (4 September 2014),
para 6
[3]
UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating
to the
Status of Refugees
HCR/IP/4/Eng/Rev.1
Reedited
Geneva
1992 (‘the UNHCR Handbook’)
[4]
Tantoush
v RAB and Others
2008
(1) SA 232
[5]
Harerimana
v The Chairperson of the RAB and others
2014
(5) SA 550
(WCC) at [20]
[6]
UNHCR
Handbook, para 196
[7]
UNHCR
Handbook, para 42;
Fang
v Refugee Appeal Board
[2006]
JOL 18635 (T)
[8]
Tantoush
v Refugee Appeal Board and others supra
[9]
Tantoush
v Refugee Appeal Board and
Others
supra
at
paras 97 to 98.
[10]
WCHC
Case 25061/2012, page 8
[11]
2005
(4) SA 67
(SCA) at para 28-29
[12]
See
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty)
D
Ltd;
Minister of Environmental Affairs and Tourism and Others v Bato Star
Fishing (Pty) Ltd
2003
(6) SA 407 (SCA)
at
paras [47] - [50], and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
(2004
(7) BCLR 687)
at paras [46] - [49].
[13]
Unreported
judgment of the Transvaal Provincial Division under case number
30720/2006, delivered 19 June 2007
[14]
Case
number 19726/2010, delivered 2 November 2012
[15]
Trencon
Construction v Industrial Development Corporation
2015
(5) SA 245
, paras 34 and 42