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[2021] ZAGPJHC 542
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CE and Others v The Minister of Home Affairs and Others (27367/2016) [2021] ZAGPJHC 542 (11 October 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 27367/2016
REPORTABLE:
No
OF
INTEREST TO OTHER JUDGES: No
REVISED:
In
the matter between:
C[....]
E
First Applicant
E[....]
E
Second Applicant
V[....]
E
Third Applicant
A[....]
E
Fourth Applicant
P[....]
E
Fifth Applicant
(DULY
ASSISTED BY HIS LEGAL GUARDIAN E[....]
E)
K[....]
E
Sixth Applicant
(DULY
ASSISTED BY HER LEGAL GUARDIAN E[....]
E)
M[....]
E
Seventh Applicant
(DULY
ASSISTED BY HER LEGAL GUARDIAN E[....]
E)
E[....]2
PRINCE
KABWE
Eighth Applicant
(DULY
ASSISTED BY HER LEGAL GUARDIAN V[....]
E)
A[....]2
TUSIMBANA
Ninth Applicant
(DULY
ASSISTED BY HER LEGAL GUARDIAN
A[....]
E)
and
THE
MINISTER OF HOME
AFFAIRS
First Respondent
CHAIRPERSON
OF THE REFUGEE APPEAL BOARD
Second Respondent
THE
REFUGEE STATUS DETERMINATION OFFICER
Third Respondent
THE
DIRECTOR–GENERAL OF THE DEPARTMENT OF
Fourth Respondent
HOME
AFFAIRS
THE
CHAIRPERSON OF THE STANDING COMMITTEE
Fifth Respondent
FOR
REFUGEE AFFAIRS
MANAGER
OF THE REFUGEE RECEPTION OFFICE,
Sixth Respondent
MARABASTAD,
PRETORIA
Coram:
Fourie AJ
Heard
on
: 5
August 2021
Delivered:
11 October 2021
Summary:
Promotion of Administrative Justice Act 3 of 2000
. Review of
decisions by Refugee Status Determination Officer and Refugee Appeal
Board, refusing asylum application. Application
of existing
principles to the facts. The principle of family unity, contained in
applicable UN Conventions and given effect to
in legislation, does
not require separate asylum applications by individual family
members. Impugned decisions set aside and referred
back to the
decision-makers.
JUDGMENT
Introduction
1.
This is an application, brought in terms of the
Promotion
of Administrative Justice Act 3 of 2000 (“PAJA”), in
which the applicants seek
to review and set aside the
decisions of the third respondent, the Refugee Status Determination
Officer (“RSDO”) to
decline their asylum application, and
the refusal of their appeal by the second respondent, the chair of
the Refugee Appeal Board
(“RAB”).
2.
The second to ninth applicants (“the applicants”),
Mrs
E[....] E (“E[....]”) , her children (and their
subsequent offspring), were not cited as parties in the original
review application. The first applicant, Mr C[....] E (“C[....]”),
the head of the E family, brought the review application,
but did not
prosecute it, and has abandoned his family.
3.
The applicants then applied to join in the
review proceedings, so as to continue to prosecute it.
In
the joinder application the following applicants sought to be joined
to the main application:
3.1.
E[....] as the second applicant;
3.2.
V[....] E (“V[....]”) as the
third applicant;
3.3.
A[....] E (“A[....]”) as the
fourth applicant;
3.4.
P[....] E (“P[....]”) as the
fifth applicant;
3.5.
K[....] E (“K[....]”) as the
sixth applicant;
3.6.
M[....] E (“M[....]”) as the
seventh applicant;
3.7.
E[....]2 Prince Kabwe (“E[....]2”)
as the eighth applicant; and
3.8.
A[....]2 Tusimbana (“A[....]2”)
as the ninth applicant.
4.
V[....], A[....], P[....], K[....] and
M[....] are E[....]’s children. V[....] and A[....] are
adults and P[....], K[....]
and M[....] are minor children.
E[....]2 and A[....]2 are E[....]’s grandchildren. The sixth to
ninth applicants were
assisted by E[....], as their legal guardian.
5.
The Minister opposed the joinder application, and filed an affidavit
raising two legal defences: First, that the applicants lacked
locus
standi
in the review proceedings as they were not party to
C[....]’s initial asylum application or subsequent appeal, and
secondly,
that as C[....] had not prosecuted the application, any
subsequent order would have no practical effect. In essence this is
the
same point as the first.
6.
On 6 August 2019, Wanless AJ ordered the joinder of the applicants
as
co-applicants in the main review proceedings (together with ancillary
relief, reinstating their asylum seeker permits pending
the outcome
of the main application). The applicants duly supplemented the
founding papers in the review application. The respondents
did not
challenge this Order, and did not file answering affidavits in the
main review proceedings, but did file heads of argument.
At the
hearing in the main review proceedings counsel for the respondents
sought to argue the issues of lack of
locus standi
and
mootness, despite not pleading these defences in the main
application. I deal with these issue in due course.
Background
7.
The second applicant (“E[....]”) fled the Democratic
Republic of Congo (“DRC”) with her now estranged husband,
the first applicant (“C[....]”) and several of
their
minor children, and arrived in South Africa in 2004. On 6 June 2006,
C[....], assisted by an informal interpreter, a bible
college
student, applied for refugee status, and signed an Eligibility
Determination Form For Asylum Seekers, i.e. an application
for
asylum. This is a standard form used at the time by the Department of
Home Affairs to process asylum applications.
8.
In the application, C[....] described himself as married, and
listed
E[....] and three minor children under the “Family Details”
section of the form. The reason for seeking asylum
was described as
follows:
“
The applicant
claims his father was killed by the present government of J Kabila,
and claim because of political instability that
is why he is applying
with his family in RSA. The applicant claim that there is political
crisis in Congo”.
9.
Some two years and two months later, in October 2008, the RSDO
refused the application for asylum. C[....] duly lodged an appeal to
the RAB, which was refused.
The
legal defences raised in argument
10.
The respondents argue that the applicants have no
locus
standi
to prosecute the review, as they have not applied for
asylum. The argument is based on the fact that only C[....] is listed
as
an applicant for asylum in the Eligibility Determination Form
described above. The respondents assert, without producing any
evidence
whatsoever in support of their argument, that it was
necessary for each of the individual applicants to have completed a
separate
application for asylum status.
11.
In his application, C[....] completed the “family
details”
section of the form as follows:
(Refer
to PDF)
12.
The children referred to are V[....], A[....] and P[....], who
at the
time of the application were 12 years, 9 years and six months
old, respectively.
13.
It beggars belief that counsel for the respondents could
seriously argue
that these children should have completed separate
asylum application forms. This kind of nonsensical argument is not
acceptable,
particularly when made on behalf of the public officials
responsible for the administration of the asylum seeker processes,
which
directly affect the lives of tens of thousands of people. A
more humane approach is required, as recently emphasised by the
Supreme
Court of Appeal in
Somali Association of South Africa and
Others v The Refugee Appeal Board and Others
(Case no 585/2020)
[2021] ZASCA 124
(23 September 2021) (“
Somali Association
”):
“
[1] … In
the case of persons who have come to our country to seek asylum and
those who might ultimately qualify for refugee
status, the following
two quotes are apposite:
“
Migrants and
refugees are not pawns on the chessboard of humanity. They are
children, women and men who leave or who are forced
to leave their
homes for various reasons, who share a legitimate desire for knowing
and having, but above all for being more.‟
The renowned author,
Khaled Hosseini, is reported to have said the following:
“
Refugees are
mothers, fathers, sisters, brothers, children, with the same hopes
and ambitions as us – except that a twist
of fate has bound
their lives to a global refugee crisis on an unprecedented scale.‟
14.
Not only is the interpretation contended for by the
respondents
not supported by any factual evidence, it is also made in
the absence of any supporting authorities of any kind. In their heads
of argument, counsel for the applicants debunk this argument with
reference to the statutory regime that applied at the time, as
follows:
“
25.
The now repealed section 33(1) of the Refugees Act (which applied at
the time of the initial asylum application
as well as the decisions
of the RSDO and RAB) expressly recognised the right of C[....]
to assist his dependants who travelled
with him to the Republic to
apply for asylum or to apply on their behalf. As a general
proposition the claim of dependants to refugee
status falls within
the orbit of section 3(c) of the Refugees Act. That provision is
designed to facilitate the principle of “family
unity”.
26. The
now repealed regulation 16 expressly recognised that a dependant
asylum seeker could be “included
in the principal’s
[C[....]] asylum application”. There was an obligation on
the Refugee Reception Office (“RRO”)
in terms of
regulation 16(2) to ensure that this “inclusion” was
effected. The applicants submit that the facts
set out in
paragraphs 20 to 23 above sufficiently demonstrate that the RSDO and
RAB accepted and treated C[....]’s application
as “including”
the entire family as envisaged by regulation 16.”
15.
I agree with these legal submissions. Furthermore, in
Somali
Association,
the SCA emphasised the importance of considering
applicable international conventions when dealing with asylum
applications:
“
[8] … In
dealing with such applications, it must be emphasised, once again,
that State authorities are required to ensure
that constitutional
values, including those that embrace international human rights
standards set by international conventions
and instruments in
relation to those seeking asylum, adopted by South Africa, are
maintained and promoted.”
16.
The
UNHCR Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status
[1]
contains a chapter on the principle of family unity, which provides
as follows:
181. Beginning with the
Universal Declaration of Human Rights, which states that “the
family is the natural and fundamental
group unit of society and is
entitled to protection by society and the State”,
most
international instruments dealing with human rights contain similar
provisions for the protection of the unit of a family
.
182. The Final Act of the
Conference that adopted the 1951 Convention:
Recommends Governments to
take the necessary measures for the protection of the refugee’s
family, especially with a view to:
(1)
Ensuring that the
unity of the refugee’s family is maintained particularly in
cases where the head of the family has fulfilled
the necessary
conditions for admission to a particular country
.
(2) The protection of
refugees who are minors, in particular unaccompanied children and
girls, with special reference to guardianship
and adoption.
183. The 1951 Convention
does not incorporate the principle of family unity in the definition
of the term refugee. The above‐mentioned
Recommendation in the
Final Act of the Conference is, however, observed by the majority of
States, whether or not parties to the
1951 Convention or to the 1967
Protocol.
184.
If the head of a
family meets the criteria of the definition, his dependants are
normally granted refugee status according to the
principle of family
unity
. It is obvious, however, that formal refugee status should
not be granted to a dependant if this is incompatible with his
personal
legal status. Thus, a dependant member of a refugee family
may be a national of the country of asylum or of another country, and
may enjoy that country’s protection. To grant him refugee
status in such circumstances would not be called for.
185.
As to which
family members may benefit from the principle of family unity, the
minimum requirement is the inclusion of the spouse
and minor
children
. In practice, other dependants, such as aged parents of
refugees, are normally considered if they are living in the same
household.
On the other hand, if the head of the family is not a
refugee, there is nothing to prevent any one of his dependants, if
they can
invoke reasons on their own account, from applying for
recognition as refugees under the 1951 Convention or the 1967
Protocol.
In other words, the principle of family unity operates
in favour of dependants, and not against them
.
186. The principle of the
unity of the family does not only operate where all family members
become refugees at the same time. It
applies equally to cases where a
family unit has been temporarily disrupted through the flight of one
or more of its members.
187. Where the unity of a
refugee’s family is destroyed by divorce, separation or death,
dependants who have been granted
refugee status on the basis of
family unity will retain such refugee status unless they fall within
the terms of a cessation clause;
or if they do not have reasons other
than those of personal convenience for wishing to retain refugee
status; or if they themselves
no longer wish to be considered as
refugees.
188. If the dependant of
a refugee falls within the terms of one of the exclusion clauses,
refugee status should be denied to him.”
(Emphasis added)
17.
The current iteration of the
Refugees Act 130 of 1998
expressly
provides that “
3… a person qualifies for refugee
status for the purposes of this Act if that person …(c) is a
spouse or dependant
of a person contemplated in paragraph (a) or
(b)
.” This subsection (c) was introduced by way of
amendment that took effect from 1 January 2020. The version of the
Act that
applied at the time of the application for asylum did not
contain this subsection. However, even in the previous iteration of
the
Refugees Act and
applicable regulations (as demonstrated above),
and given the applicable Conventions, to which South Africa has bound
itself, this
argument lacked merit. In my view, at the time of the
completion of the Eligibility Determination Form by C[....], there
was no
requirement for his wife and minor children to complete
separate applications, as it was an application on behalf of the
family
unit, for asylum in South Africa. The applicants (excluding
the sixth to ninth applicants, who were not born at the time) are
mentioned
in C[....]’s form as his family, and clearly their
fates as asylum seekers were dependent on the outcome of C[....]’s
application. Their rights are equally affected by the rejection of
C[....]’s application. They accordingly have
locus standi
to
prosecute this review application, even in C[....]’s absence,
and the dispute is clearly not moot.
18.
In the circumstances, the legal issues raised by the respondent
in opposing
this application have no merit. Having proffered no
factual defence to the review application, I will deal with the
primary grounds
of review on an unopposed basis.
Condonation
19.
In the first founding affidavit in the review proceedings,
deposed to
by C[....], he seeks condonation for failing to bring
review proceedings within the requisite six-month period from date of
dismissal
of his appeal to the RAB. The review application was
brought on 8 August 2016. The decision of the RAB is dated 26 August
2009.
It appears to have been received by C[....] on 26 January 2011.
Clearly the review application was brought several years out of
time.
Several more years have passed in the prosecution of the appeal.
20.
Given that the condonation application is not opposed, the
special circumstances
present that warrant the hearing of this matter
on the merits, the excellent prospects of success in the main
application, and
the fact that the rights of minor children are
affected by this application; I exercise my discretion in favour of
granting condonation
for the late filing of the review application,
and will deal with the matter on its merits.
Primary
review grounds
21.
There are several blatant irregularities in the processes
followed by
both the RSDO and the RAB, that warrant the setting aside
of the decisions of both bodies. In particular:
22.
The failure
by both the RSDO and RAB to provide competent interpretation
services, violated the Constitutional right to procedurally
fair
administrative action, and rendered both processes fundamentally
unfair, and subject to review under PAJA. As Keightley
AJ (as
she then was) held in the matter of
FAM
v The Minister of Home Affairs & 3 Others
[2]
("FAM") where she held as follows:
“
[101] The
obligation on the part of the Department to provide competent
interpretation services is an important safeguard for applicants
in
the asylum process because, by their nature, asylum seekers often
speak languages foreign to South Africans
. Unless an applicant has
competent interpretation services at his or her disposal there can be
no assurance that the evidence placed
before the RRO and RSDO is
accurate or properly understood by the applicant, or needless to say,
by the RSDO. Nor can it be said
in those circumstances that an
applicant has been given a reasonable opportunity to make appropriate
representations to the RSDO,
or that the RSDO's decision will be made
properly with reference to all the relevant facts of the particular
case
.
[102]
It seems to me,
therefore, that these procedural requirements are fundamental not
only to an applicant’s right to a fair hearing,
but also to the
substantive outcome of an asylum application
. This is amply
demonstrated by the facts of the present case. For this reason alone,
I find that decision of the RSDO to refuse
the applicant’s
application ought properly to be reviewed and set aside on the basis
that it was procedurally unfair in this
respect.” (Emphasis
added)
22.1. I agree fully with
the findings and reasoning of Keightley AJ. Stated bluntly,
inadequate or incompetent translation of an
applicant for asylum’s
submissions (often involving recounting traumatic past events, in a
highly stressful bureaucratic
environment, where the stakes for the
applicant and his or her family are incredibly high) can taint the
entire asylum process
with irregularity.
23.
The
ultra vires
composition of the RAB. The record
reflects that the RAB was constituted of a single official, Mr
Mohale. This is
ultra vires
the empowering statute,
Section
13(1)
of the
Refugees Act (which
applied at the time, since repealed
and replaced by
section 8B):
"The 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." (Emphasis added)
23.1. A single-member
appeal board is clearly irregular, and its findings stand to be set
aside on review on this basis alone. This
has been confirmed in
several cases. See
Harerimana v Chairperson of the Refugee Appeal
Board and Others
2014 (5) SA 550
(WCC), where a decision of the
RAB was set aside on identical grounds. See also
Kalisa v
Chairperson, Refugee Appeal Board and Others
2020 (4) SA 256
(WCC).
24.
Other competent review grounds were pleaded and would also
justify setting
aside both the decisions of the RSDO and RAB. In my
view it is not necessary to traverse these grounds, as I have already
found
that both decisions must be set aside on review.
Appropriate
relief
25.
The applicants seek an order remitting their application for
asylum to
the RSDO for a
de novo
determination. This seems to
be the most appropriate relief, for the reasons set out by Binns-Ward
J in
Kalisa v Chairperson, Refugee Appeal Board and Others
2020 (4) SA 256
(WCC) at para 26-26.
Costs
26.
The applicants have been ably assisted by competent legal
representation,
and clearly considerable resources have been deployed
in salvaging the application after C[....] abandoned it. Given that
the defects
in the asylum process are so blatant, it is unfortunate
that the respondents elected to opposing these review proceedings, on
baseless
grounds, without presenting factual evidence to dispute the
allegations of irregularities, and despite existing case law that is
exactly on point. In the circumstances, I exercise my discretion in
favour of granting costs of the application to the applicants,
such
to include the costs of two counsel, where two counsel were engaged.
27.
My order follows.
Order
1.
Condonation for the late filing of the review application is granted.
2.
The decision of the Second Respondent taken on 26 August 2009 under
Appeal Number
1596/09 obtained against the First to Fifth Applicants
in respect of File Number BRA/006576/04 is reviewed and set aside.
3.
The decision of the Third Respondent dated 21 October 2008 under File
Number
BRA/006576/04 is reviewed and set aside.
4.
The Sixth to Ninth Applicants are declared dependants under File
Number BRA/006576/04
in terms of section 3(c) of the Refugee Act 130
of 1998 (the Act).
5.
The application under File Number BRA/006576/04 is remitted to the
Third Respondent
for a
de novo
hearing.
6.
The Third and Sixth Respondents are directed to periodically renew
the Second
to Ninth Applicants’ asylum seeker permits pending
the decision of the Third Respondent, and the exhaustion of all
available
appeal and review mechanisms, pursuant to the
de novo
hearing.
7.
The Respondents are ordered jointly and severally to pay the costs of
the application,
including the costs of the joinder application, such
costs to include the costs of two counsel, where two counsel were
engaged.
Greg
Fourie
Acting
Judge of the High Court of South Africa
Gauteng
Local Division, Johannesburg
HEARD
ON:
5 August 2021
DATE
OF JUDGMENT:
11 October 2021
FOR THE
APPELLANT:
Adv C Picas (Heads of argument drawn by Adv P Slabbert and Adv C
Picas)
INSTRUCTED
BY:
Fasken Attorneys
FOR
THE RESPONDENT:
Adv PP Baloyi
INSTRUCTED
BY:
State Attorney, Johannesburg
[1]
Under the 1951 Convention and the 1967 Protocol relating to
the status of refugees-reissued, Geneva 2011, and applied by
the SCA
in
Somali
Association.
Available
at
https://www.unhcr.org/publications/legal/5ddfcdc47/handbook-procedures-criteria-determining-refugee-status-under-1951-convention.html
[2]
(6871/2013) [2014] ZAGPPHC 649 (22 August 2014). Listed on
saflii.org as “M v Minister of Home Affairs and Others”