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[2020] ZAGPPHC 54
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Siyad v minister of home Affairs and Others (46038/2016) [2020] ZAGPPHC 54 (6 February 2020)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURTOF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 46038/2016
6/2/2020
AHMED
HUSSEIN SIYAD
APPLICANT
and
THE
MINISTER OF HOME AFFAIRS
FIRST RESPONDENT
THE
CHAIRPERSON: REFUGEE APPEAL BOARD
SECOND RESPONDENT
L
NDLOVU N.O
THIRD RESPONDENT
THE
REFUGEE STATUS DETERMINATION OFFICE: TIRRO FOURTH
RESPONDENT
THE
MINISTER OF HOME AFFAIRS
FIFTH RESPONDENT
THE
DIRECTOR GENERAL: DEPARTMENT OF HOME AFFAIRS
SIXTH RESPONDENT
JUDGMENT
NV KHUMALO J
INTRODUCTION
[1]
This is an application for a review of a decision taken by the 1
st
,
2
nd
, 3
rd
and 4
th
Respondents refusing the Applicant, Mr Ahmed Hussein Sayid ("Sayid"),
a national of Somalia, refugee status and asylum.
The order Sayid
seeks is in the following terms:
[1.1]
Reviewing, setting aside and declaring unlawful and unconstitutional
the 1
st
, 2
nd
, and 3
rd
Respondents'
decision made on S March 2016 and received by the Applicant on 18
December 2015.
[1.2]
Reviewing and setting aside and declaring unconstitutional the 4
th
Respondent decision.
[1.3] In
terms of s 3 (a) and/or (b) of the Refugees Act, 1998 (Act No. 130 of
1998) ("the Act"),
declaring that the Applicant is granted
refugee status.
[1.4]
Directing the 5
th
and 6
th
Respondents forthwith
to issue the Applicant with as 24 of the Act permit.
[1.5] In
the alternative remitting the matter to the Refugee Appeal Board
(RAB) with the following directions:
[1.5.1] The RAB
is directed to re-hear and make a decision on the Applicant's appeal
within two month of the court's
order, and;
[1.5.2] The
Respondents must renew the Applicant's section 22 asylum seeker
permit until his application for refugee
status has been finally
determined, which includes his right of review under the Promotion of
Administrative Justice Act 3 of 2000
("PAJA").
[2]
The 1
st
Respondent is the Refugee Appeal Board (RAB) that determines appeals
against decisions of the 4
th
Respondent in terms of s 26 of the Refugees Act 130 of 1998 (the Act)
and 14 (1) (b) of the Regulations to the
Refugees Act
("the
Regulations"). The 2
nd
Respondent is the Chairperson of the Refugee Appeal Board whose
decision the Applicant seeks to review and set aside. He is cited
in
his official capacity. The 3
rd
Respondent, L Ndlovu is cited in her representative capacity as a
member of the RAB. She together with the Chairperson, L Chipu
heard
and dismissed Sayid's Appeal against the RSDO decision. The 4
th
Respondent, the Refugee Status Determination Office ("RSDO")
of the Tshwane Interim Refugee Reception Centre ("TIRRO")
is the official responsible for the initial determination of the
asylum Application. The 5th Respondent is the Minister of Home
Affairs cited in his official capacity and the 6th Respondent, is the
Director General who is responsible for the administration
and
implementation of the Immigration Act and the
Refugees Act. The
Application is opposed by all the Respondents.
[3]
S 3 of the Act reads:
A
person qualifies for refugee status for the purposes of the 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 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 of the whole
of his or her country 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.
[4]
According to Sayid's Founding and Supplementary Affidavits he is an
asylum seeker
who fled his home country Somalia in 2009. He fled
after being threatened to be killed by AI Shabaab men accusing
him of living
in the western culture and not attending the mosque. He
was listening to Tupac music at the time and liked to play soccer. He
was
not going to change, therefore a few weeks later he decided to
leave the country in the company of one Abduralman. They travelled
by
truck for three days from Mogadishu to Kismayo, which is closer to
the Kenyan border. They then travelled by boat from Kismayo
to
Mombasa in Kenya.
They were
in
transit
in
Mombasa
for less than 12 hours after which they changed to another boat that
travelled to Mozambique.
They were then put in a container in a
truck that took them across the border to South Africa, entering
without a passport. Closer
to the border, they jumped out of the
truck and walked for three to four hours until they crossed into
South Africa, jumping through
a fence through at an area that was not
heavily guarded. They took a taxi to a place called Mohamed's Lodge
in Pretoria West where
Somalians live.
[5]
Sayid applied for asylum in December 2009 at the Tshwane Interim
Refugee Reception
Office ("TIRRO").
According to
him
as he could not speak English properly,
he was assisted at
TIRRO by an interpreter from Somalia to complete the Bl -1590 form
who asked for R300 for the services. He could
not pay but the
interpreter assisted him anyway. On the same day he was interviewed
by the Refugee Status Determination Officer
("RSDO"), which
is the 4
th
Respondent, in an interview that lasted 10
minutes. The RSDO did not ask him too many questions, except being
asked
through a translator his reason for leaving Somalia.
He
told them about his family and was not allowed to say anything
further.
He denies that he ever said his family fled to a rural
area as is reflected on the RSDO decision.
He does not however
elaborate on what exactly he told the officer. Following the
interview he was called to collect an asylum seeker's
permit. He does
not remember receiving a written decision but a month later when he
went to renew or extend his permit he was given
a form to complete
which he
suspects was a Notice of Appeal. He completed
it
with
the help of one Mohamed, a friend.
He thereafter regularly
renewed his permit.
[6]
According to the RSDO Notice he was notified of the refusal by the
RSDO on the same
day 8 December 2009 and also that he is expected to
note his appeal within thirty (30) days from the date of the
decision. His
notice to appeal was, according to the documents lodged
for the first time after three (3) years on 23 January 2013. The
stated
reason for his claim's refusal was that it was unfounded.
[7]
He alleges that an appeal hearing with the RAB was initially booked
for him on 23
January 2013. It was postponed a few times until\it
finally took place on 27 February 2013. The Appeal was heard before
one member
of the RAB.
He attended with Mohamed who interpreted
for
him
and a lawyer instructed by Mohamed.
He alerted the
RAB member to the incorrect recording on his permit of 5 January 1989
as his birth date instead of 29 December 1991.
The RAB member did not
ask him many questions except about his family and for the reason why
he left Somalia.
He told the RAB about his house that was
destroyed
and some members of his family that were killed. Also
that he fled because of war in Somalia. After the appeal hearing he
was furnished
with a letter to take to TIRRO for his permit to be
renewed. When he returned to TIRRO he was told to approach the RAB
for a decision.
Back at the RAB he was told that the member of the
RAB has resigned and his documents were misplaced. He was
consequently given
another date, the 12 December 2013 for an appeal
hearing in Pretoria.
[8]
At this second hearing he attended
alone with no lawyer or interpreter.
The
hearing was conducted by two members, a man and a woman, M Chipu and
L Ndlovu, the 2
nd
and 3
rd
Respondent. Except for his personal details he was asked for his
reason for having left
Somalia and
whether he would be willing to go back. He told them he would be
willing if there is peace
in
Somalia
which was not there. He told them about the civil war there and the
fact that he might be killed.
They
wanted to know what he thought might be the reason his application
was rejected by the RSDO. He told them his interpreter might
not have
told his story correctly and that it lasted for only 10 minutes. He
had also told them that if he is granted asylum he
was hoping to make
a living by having access to health, education and all the things
that someone needs to make life possible.
The appeal lasted less than
30 minutes. Pending the outcome of the appeal he had continued to
renew his asylum seeker permit. On
18 December 2015 he received the
RAB decision dismissing his appeal. He consulted his attorneys for
advise on the legal implication
of the decision and the errors it
contained in relation to his asylum claim which he regarded as
impacting
on the procedural and
substantive aspects of his rights to a fair refugee status
determination.
The RAB has refused
his Application on the basis that:
[8.1] He
did not suffer any persecution or harm in terms of s 3 of the Act. He
did not have a well-founded
fear of persecution. He was therefore not
compelled to leave his country of origin.
[8.2] He
stayed in Kenya for a period of one month and was given protection by
that country. There is nothing
in his evidence that indicate that he
was persecuted in Kenya because of his nationality. He left Kenya
because he was seeking
a better life for himself.
[8.3]
living conditions do not fall within the threshold of
s 3
of the
Refugees Act therefore
cannot be regarded as persecution. He
enjoys/ed the protection of each country he has taken residence in.
He would not qualify
or be recognised as a refugee under ks 4(1) (d)
of the
Refugees Act.
[8.4
] It
is unlikely that he will face a reasonable possibility of harm or
persecution if he were to return
to Somalia. In his appeal there is
nothing that indicates that he was either tortured, physically
attacked or arrested while he
was still in his country during 2009.
He can return safely to his country of origin, there are areas which
are identified not to
be affected by civil war and are under
government's control.
[8.5] The
board finds that he has not discharged the burden of proof that has
rested on him to justify the
granting of asylum in terms of the
Refugee Act.
[9]
The Applicant brought this application only on 10 June 2016 more than
180 days from the date of the decision and the matter only set down
for hearing in June 2018. The Applicant has applied for condonation
for the delay in bringing the Application. The court was persuaded
that there was a reasonable explanation of the delay and being
appreciative of the importance of the matter granted condonation. The
Applicant was represented by Mr Letsebe and the Respondents
by Ms N
Rantho.
Grounds
for Review
[10]
The Applicant contends that the RAB should have provided him with an
interpreter during
the appeal hearing or notified him and afforded
him (seven (7) days within which he should source his own
interpreter. At his second
hearing he had neither an interpreter nor
a lawyer but the hearing was allowed to proceed. He argues that in
the circumstances
where he had limited understanding of the English
language and the RAB members also with none or little knowledge of
his mother
tongue, for the purposes of the
Refugees Act, PAJA
and the
Constitution it means there was no hearing at all. The same
consideration being applicable to the situation at the reception
office at TIRRO where he relied upon a volunteer as a result of their
failure to provide interpretation services for the purposes
of
completing the form and conducting the RSDO interview. As a result he
argues that the
RAB's
failure
to deal with and remedy the RSDO's flaws constitutes a violation of
its statutory duties as an appellate body under the
Refugees Act. The
flaws also combined with its own flaws constitute a violation of his
rights to procedural fairness in the determination of his
asylum
claim. Mr Letsebe argued that not affording the Applicant an
interpreter during the proceedings amounted to an irregularity
that
justifies a review of the proceedings.
Misapplication of the Law on the
burden of proof
[11] The
Applicant argues that the RAB misapplied the law when in paragraph 8
of its decision
it stated that:
"the burden of proof is on
the Appellant to show that he is entitled to refugee status" and
"the standard of proof
is that of a reasonable possibility of
risk", further that this reasonable risk must be considered in
the light of all the
circumstances i.e. past persecution and a
forward looking appraisement of risk "whereafter it concluded
that the Appellant
has not discharged the burden of proof which
rested on him"
[12] He
argues that the Application of the burden in the abovementioned
manner is incorrect
as it is inconsistent with the test applied when
determining the strength of the person's refugee claim as provided
for in the
UNHCR Handbook
on
Procedures and Criteria for determining refugees status which enjoins
the adjudicator to meet the asylum seeker halfway, and
assist with
the resources at its disposal in proving the asylum seeker's claim.
As a result of the misapplication of the burden
and standard of
proof, the RAB was bound to come to the wrong conclusion that
Applicant has failed to discharge the burden that
rested on him.
Further that the misapplication of
the test meant that the RAB wrongly rendered Applicant's otherwise
persecutory circumstances
as being at odds with the qualifying
circumstances defined under s 3 (b) of the Act.
It
is also not mentioned if he has met or failed to meet the burden of
proof that he is eligible to be granted refugee status. Reference
is
made to "Credibility" without stating anything further
which he has concluded to mean his claim was found to be
unbelievable.
Incorrect test
[13]
The Applicant also contends that incorrect test applied to his
refugee status. He submits
that he has consistently based and is
eligible to a determination of his refugee status under Section 3 (a)
and 3 (b) and is entitled
to be granted refugee status, if:
[13.1] He or she can
show that he or she has faced persecution or threat of persecution by
reason of his or her association
or perceived association with any
attributes listed ins 3(a) of the Act; and or
[13.2] country of
origin information shows the prevalence of events seriously
disturbing or disrupting the public order,
as is
revealed in
the reports to which he has referred to below, and has attested to in
his affidavit. ·
He
argues that he has met the basis of the first criterion in s 3 (a)
that requires individualised fear of persecution on either
of the
attributes listed in it by virtue of the fact that while in refuge in
Ceelashabiya he fell victim to AI-Shabaab militants
who perceived his
life style to be pro-western ways and anti-Islam, more so because as
they said, he did not attend mosque.
[14] He
also contends that he qualifies to be granted refugee status under s
3 (b) by virtue
of events in his country that are seriously
disturbing and disrupting public order in many parts of the country.
Whereby the Somali
Government cannot, despite foreign assistance by
the African Union peace forces and others, contain the violent
situation in the
country. On the basis of this criteria and the clear
evidence of his eligibility, to be granted the refugee status under s
3 (a)
and (b), from the RAB's decision it would appear that the RAB
applied only the first criterion under s 3 (a). Even then it still
failed to appreciate the manifest human rights violations prevailing
in Somalia.
[15]
The RAB has therefore contravened the express statutory provisions of
the Act and its approach
bound to yield an irregular finding that he
is ineligible to refugee status when it would have been dangerous for
him had he remained
in Somalia, and remains dangerous for him to be
expected to return there. Mr Letsebe argued that in that sense the
court did not
apply the law properly by making irrelevant
considerations and disregarding relevant considerations.
Misapplication
of
s 4
(d) of the
Refugees Act
[16
]
He indicates that when he transited through Kenya and Mozambique he
did not stay in any of the two
countries but used them as his travel
routes to South Africa. The RAB drew a wrong inference that he was
unqualified to gain refugee
status in this country for it had reason
to believe that he enjoyed the protection of another country in which
he took residence.
Further that he resided and left Kenya because of
unbearable living conditions which is misplaced and unsupported by
facts. The
RAB, as a result of this flaw misapplied the provisions of
s 4
(d) in an attempt to discredit him as an eligible candidate for
recognition as a refugee as he already enjoyed protection of Kenya
or
Mozambique. He submits that he is entitled to be and to remain in
South Africa as dictated by the
Refugees Act that
gives effect to
South Africa's Constitutional and International Law Obligations
towards asylum seekers and refugees.
[17]
The Applicant refers to the real situation in his country and argues
that the RAB had failed
to consider his country's information as if
they had done so they would have found that
persecutory
circumstances prevailed that induced
him
to flee Somalia
and
refusing him refugee status would result in him being deported and
being exposed to persecution and possible death in his country.
The
RAB's drawing of a negative inference against his refugee claim was
irregular and inconsistent with the
Refugees Act.
[18]
He submits that the RSDO and the RAB's decision have the effect
that he eventually faces expulsion from this country or deportation
to Somalia. If he is expelled or deported South Africa would have
violated his human rights under the
Refugees Act, the
Constitution
and International law, as his re-entry into Somali has the potential
that he will suffer physical harm or even death.
The RSDO has
stated in its report that after research into the current situation
in Somalia various country information reports
indicate that although
there still continue to be security incidents in Mogadishu since the
fighting stopped. The RSDO report downplays
the breadth and impact of
the security concerns that still exists and contradicts what is in
the report and must be rejected by
the court. He argues that there is
no rational connection between the decision of the RSDO and the
reasons given for it.
[19]
In his supplementary Affidavit he alleges that where he is asked to
list the countries he transited
en route to South Africa, the RSDO
repeats the mistake in the 81- 1590 form listing Tanzania, Malawi,
Mozambique and Zimbabwe which
is in odds with what he stated In the
Founding Affidavit where Zimbabwe is not mentioned. The RSDO
persisted with the error recording
Beit Bridge to the question of
port of entry into RSA. He also when completing the 81-1590 form,
stated
in
his affidavit that he attended only primary
school and never high
school because of civil war. However where
it says education and highest qualification obtained, nothing is
mentioned. The RSDO
also wrongly records his highest standard of
education as Std 8 contradictory to the averments in his Founding
Affidavit where
he
confesses to lack of secondary education.
The
RSDO left the following questions unanswered:
[19.1] Why are you
applying for asylum?
[19.2]
Which measures did you take to solve your problem?
[19.3]
If no please give reasons ( a follow up to the question "Do you
wish to return to your home country "which
is answered ("NO")
[19.4] What would
happen to you if you are returned to your home country? Upon which
the RSDO concludes that his application
is unfounded.
Misapplication of s 24 (2) of the
Refugees Act
[20]
The RSDO contravened s 24 (2) of the Refugee Act which provides
that when considering an application for refugee status due regard
is
to be had to the rights set out
in
s 33 of our
Constitution
ensuring that the Applicant fully understand the procedures, his or
her rights and responsibilities and the evidence
presented,
which
is the prerequisite to the making of a decision under s 24 (3) of the
Act.
[21]
It is further submitted by the Applicant that the RSDO decision is no
decision as is contemplated
in s 24 (2) in that it is unlawful,
irrational and procedurally unfair in that it neither contains nor
provides reasons imposed
under s 33 (2) of the Constitution. In its
decision it records that he fled Somali by reason of civil war. The
relevant sections
3 is quoted without any linkage of his situation to
the section but as a matter of formality without attaching any value
or substance
to it. In so doing wrongfully negating the rights
accruing to him under subsection (a) and (b).
[22]
In respect of the RAB, he accuses the Board to have abrogated its
duties as it was a forgone
decision to it and the RSDO to
consistently deny him refugee status. It therefore as such, appears
that although RAB had looked
at the RSDO decision it shows from its
decision that it was unperturbed by the manifested errors contained
therein.
[23]
The Applicant also accuses the RAB of noting wrong information during
the hearing specifically
that, even though its decision states that
"The appellant never attended school while he was in his country
of origin. He
has no educational qualification. "This is not
noted anywhere in the RAB hearing notes. He suspects the information
might
have been sourced from the B1-1590 form which was left blank by
the interpreter who assisted him. He denies that the answer came
from
him as he has attended primary school.
[24]
He also points out that the RAB member's notes repeat the errors of
the RSDO, listing Zimbabwe
as one of the countries he transited en
route to South Africa. In addition the bulk of the notes speak about
his fear for his life
due to the civil war in his country which
confirms his reluctance to go back as long as civil war continues and
desire to go back
when peace prevails. They say nothing about his
asylum claim. The place for a decision and where it is supposed to be
indicated
if the member agrees or disagrees with the decision is left
blank by the member. This renders the decision of the RAB materially
defective indicating an indecisiveness for the purposes of his
appeal, he gathers the member did not get the support of the
chairman,
the 2
nd
Respondent. The 2nd Respondent's notes
not comprehensive and therefore he concludes that they would not have
enabled him to make
a decision. He refers to the constant declaration
in the 2nd Respondent's notes that Applicant fled Somalia fearing for
his life
as a result of civil war in that country. He reckons the RAB
member's notes taken together with the revelation of RAB's failure
to
rectify the RSDO's errors to mean that the RAB's decision was a
foregone conclusion.
[25]
Finally he contends that the RAB failed to take into consideration
the relevant country of origin
information, sourced by itself on the
human rights situation in Somali, especially as it relates to the
civil war and Al Shabaab's
indiscriminate violence insurgency. It
went on to ignore them as it proceeded to rule that his appeal should
be dismissed for lack
of merit, confirming his allegation that the
Board took into consideration irrelevant information and ignored the
relevant one.
Answering
Affidavit
[26]
In response Ms Daphney Kekana ("Kekana"), who, in her
capacity as the Refugee Status
Determination Officer took the
decision which is the subject of review, has filed an Answering
Affidavit on behalf of all the Respondents,
including the Minister of
Home Affairs. It is a strange turn of events since one would have
expected the Minister to have wanted
to abide by the decision of the
court.
[27]
In respect of the initial process at TIRRO, Kekana denies that the
Applicant was required to
pay any money for the interpreter and
contends that she conducted the interview with the Applicant in
accordance with
s 24
of the
Refugees Act by
requesting information or
clarification for purposes of making the decision on his asylum
application. The Applicant was afforded
an interpreter and an
opportunity to state his case where after he was informed of the
outcome of his application and his right
to appeal to the RAB on the
same day. Subsequent thereto he was issued with an extension of hiss
22 permit bearing the same date
of birth of 5 January 1989 for all
those years without any complaint. The date of birth was provided by
the Applicant in his application
for asylum.
[28]
She further indicates that the first appeal hearing was nullified by
the fact that the member
responsible for the process left the
Department of Home Affairs before issuing the decision. The second
hearing was duly conducted
in accordance with
s 26
(1) (e) and the
RAB panel requested the information that they deemed necessary
from the Applicant.
The Applicant indicated during the second
hearing that he did not require the services of an Interpreter or a
legal representative.
[29]
In response to the Applicant's allegations that he has
consistently based his refugee status claim on
s 3
(a) and (b)
the
first and second criteria of
s 3
, Kekana points out that Applicant
has indicated that he was able to move to another area in Somalia
called Ceelashbiyah after he
left his home. Whilst there he was cared
for by a neighbour until he started working and had lived there for a
considerable period
of time. He also does not say why he could not
find any other refugee employment in the neighbouring country such as
Kenya.
[30]
In respect of Applicant's allegations that he qualified under
s 3
(a)
and
3
(b) having fallen victim to Al Shabaab militants in
Ceelashbiyah who did not appreciate his western ways and considering
the report
about the situation and the human right violations in
Somalia, Kekana submits that in relation to that Applicant does not
meet
the criteria and called upon him to prove that he does.
[31]
She also denied that there was misapplication of
s 4
(d). She
disputes the denial by the Applicant that he did not enter Kenya and
Mozambique for the purposes of staying.
[32]
Finally he also disputes that there are facts of exceptional
circumstances placed before the
court by the Applicant that justifies
the substitution of the court's decision for that of RAB by granting
of refugee status under
s 3
(a) and (b) or that proves that it would
be a waste of time or unfair to remit the matter back to the RAB due
to resignations and
delays in appeal hearings since October 2014 and
the Board's incompetence.
[33]
She submits in regard to the criticism on the manner in which the
RSDO handled the matter, that
she applied her mind to the facts that
were presented by the Applicant with the assistance of an interpreter
and found that the
grounds upon which the Applicant relied for asylum
were manifestly unfounded. The Applicant had alleged in his Founding
Affidavit
that he left his home village of Mogadishu for Ceelashabiya
for a considerable period of time after the alleged atrocities that
were allegedly suffered by his family, in total contradiction of the
information that he provided during the interview that was
conducted
by the RSDO during his asylum application in which the Applicant had
stated that he left Somalia because of war that
was happening at the
time.
[34]
Kekana contends that the RAB found that the RDSO was correct in her
findings that the Applicant's
grounds for asylum were manifestly
unfounded. There are therefore no allegations that supports the order
that is required by the
Applicant
[35] The
burden of proof, as was correctly argued by the Respondent, is on the
asylum seeker
to prove (i) an irregularity in the proceedings that
validates a review and the setting aside of the decision of the RSDO
and its
confirmation by the RBA and/or an unfair adjudication of the
application, substantively, proving that the administrative process
he was subjected to was not fair in that the RAB misapplied the law
and thus came to a wrong conclusion. For the further prayers
the
Applicant is seeking in paragraph 1.3 and 1.4, for substitution of
the decision, the establishment of exceptional circumstances
for the
court to reconsider the matter and substitute its own decision
whereupon the Applicant is to show to the court that he
qualifies
under s 3 (a) and (b) of the Act to be granted asylum or refugee
status (showing that he left his country for specifically
politically
motivated reasons and or that he has a well• founded fear of
persecution 'by reason of his or her race, tribe,
religion,
nationality, politically opinion or membership of a particular social
group) and not excluded under 4 (1) (b) of the
Act.
Legal framework
Lack
of intepreter services
[36]
The acute vulnerability of asylum seekers and refugees at the time of
their entering the
country and application for such status is on the
whole common and significant. It is recognised that many will have
little knowledge
of the law and often face language difficulties. It
is therefore important that the official who deals with their
application and
process is sensitive to that actuality and internal
remedies or systems are also in place to ensure that the applicants
are protected
from suffering any prejudice or being improperly
assessed.
[37]
In that regard the process is regulated domestically by the
provisions of the
Refugees Act, the
Constitution and by International
and Continental Instruments and Treaties to which South Africa is a
signatory, namely the 1951UN
Convention relating to the Status of
Refugees, 1969 OAU Convention Governing The Specific Aspects of
Refugee Problems in Africa
and 1967 Protocol relating to the Status
of Refugees, the 1993 Basic Agreement between the Government of South
Africa and the UNHCR
and the Immigration Act.
[38]
Our constitution commit to a culture of protection and respect of
human rights of all people,
especially the vulnerable, weak,
citizens, non· citizens and the worst amongst us. In
Minister
of Home Affairs and Others v Watchenuka and another
2004 (4) SA
326
(SCA)
(2004 (2) BCLR 120
;
[2003] ZASCA 142)
at 330B it was
recognised that:
'Human dignity has no nationality.
It is inherent in all people-citizens and non-citizens alike- simply
because they are human.
And while that person happens to be in this
country-for whatever reason- must be respected, and is protected, by
s 10 of the Bill
of Rights.'
[39]
The relevant provisions of the
Refugees Act that
guides the manner in
which the asylum seekers application process is to be handled or
treated to safeguard their rights are encompassed
in s 23 and 24 of
the Act. Section 23 reads:
(1)
An application for asylum must be made in person in accordance with
the
prescribed procedures to a Refugee Reception Officer at any
Refugee Reception Office.
(2)
The Refugee Reception Officer concerned-
(a)
must accept the application form from the Applicant;
(b)
must see to it that the
application form is properly completed, and where necessary, must
assist the Applicant
in
this regard;
(c)
may
conduct such enquiry as he or she deems necessary in order to verify
the information furnished in the application; and
(d) must submit
any application received by him or her, together with any information
relating to
the Applicant which he or she may have obtained, to a
Refugee Status Determination Officer, to deal with it in terms of s
24. (my
emphasis)
(e)
[40] Section 24
of the Act reads:
(1) Upon receipt
of an application for asylum the Refugees Status Determination
Officer
(a) in order to make a decision
may request any information or clarification he or she deems
necessary from an applicant or Refugee
Reception Office;
(b)...., (c)...,
(2) When
considering an Application the Refugee Status Determination Officer
must have due regard
for the rights set out in section 33 of the
Constitution, and in particular,
ensure
that the Applicant fully understands the procedures, his or her
rights and responsibilities and the evidence presented.
(3) The Refugee
Status Determination Officer must at the conclusion of the hearing-
(a) grant
asylum;
(b) reject
the Application as manifestly unfounded, abusive or fraudulent; or
(c) reject
the Application as unfounded ; or
(d) refer
any question of law to the Standing Committee
(4) If an
application is rejected in terms of subsection (3) (b)-
(a)
written reasons must be
furnished to the Applicant within 5 working days after the date of
the rejection or the referral;
[41]
The requirement that the RRO and RSDO see to it that the Application
is properly completed and
that the
Applicant
fully
understands
the procedures,
his
or her rights and responsibilities and the
evidence presented,
and where necessary help the Applicant,
includes providing the asylum seeker with adequate interpretation
services;
FM v Minister of Home Affairs
2014 JDR 1732 (GP) at
p102;
Tshiyombo v Members of the Refugees Appeal Board and Others
(13131/2015) ZAWCHC 190 (17 December 2015). In complying with the
provisions of section 24 of the Act, the RSDO will conduct a
non-adversarial
hearing to elicit information bearing on the
applicant's eligibility for refugee status and
ensure that the
applicant fully understands the procedures, his or her rights and
responsibilities and the evidence presented;
see Regulation 10
(1). Regulations 4 and 5 of the Regulations pursuant to the Act
provide, inter alia, that a refugee reception
officer must ensure
that an Applicant is provided with adequate interpretation and,
"where this is not practicable",
that the Applicant can be
required to provide his own interpretation, but must be given at
least seven (7) days advance notice
that he or she is required to
bring an interpreter to the interview. In essence the RRO and RSDO
have to ensure that the Applicant
complies with all the requirements
so that the process can result in a fair adjudication of the
application.
[42]
In terms of Regulation 5 where practicable and necessary, the
Department of Home Affairs will
provide competent interpretation for
the applicant at all stages of the asylum process. In cases where
sub-regulation 5(2) applies
which is when it is not practicable for
the Department of Home Affairs to provide an interpreter and
interpretation is needed,
the Applicant will be required to provide
an interpreter whereupon he would be given the seven (7)days advance
notice that ,he
is required to bring an interpreter to the interview
before the RRO or RSDO.
[43]
The obligation also extends to the
RAB.
It furthermore may in
terms of s 26 (3) before reaching a decision:
(3)
(a)
invite the UNHCR
representative to make oral or written representation;
(b)
...,
(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 enquiry;
(e)
request the Applicant to appear before it and to provide any such
other
information as it may deem necessary.
(4)
The Appeal Board must allow legal representation
upon the request of
the Appellant.
[44]
It is apparent that where there is a language difficulty at a hearing
before a body such as either
the RSDO or RAB, to the extent that the
Applicant
does not fully understand the proceedings or he is not
properly understood, such a hearing cannot be said to be fair.
In
Tantoush v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T), the court noted, on the basis of s 12 (3) of the
Act, that the RAB must function without bias and be independent. Not
only
is it required to be impartial in its decision making, but its
process fair and transparent in addition it must be structurally
independent.
[45]
It is therefore very clear that any failure to comply with the
procedural obligations is liable
to subvert the proper administration
of the Act and therefore of paramount importance that the scripts of
the law are firmly followed.
In
casu,
Mr Letsebe argued that
not affording the Applicant an interpreter during the proceedings
amounted to an irregularity that justifies
a review of the
proceedings. As a result Applicant argues that the RAB's failure to
deal with and remedy the RSDO's flaws constitutes
a violation of its
statutory duties as an appellate body under the
Refugees Act. The
flaws also combined with its own flaws constitute a violation of his
rights to procedural fairness in the determination of his
asylum
claim; see
Bolanga v Refugee Status Determination Officer and
Others
5027/2012, South Africa: High Court, 24 February 2015.
[46]
During the RAB hearing the Applicant was without an interpreter or a
legal representative and
the same consideration being applicable to
the situation at the reception office at TIRRO where Applicant
alleges not to have been
provided with interpretation services for
the purposes of completing the form and conducting the RSDO interview
and had relied
on a volunteer.
[47]
However it is common cause that at TIRRO and before the RSDO the
Applicant did get the
assistance of an interpreter except for a
disagreement on whether the interpreter' services were volunteered or
at the behest of
TIRRO. Applicant alleges that since he could not
speak English there was a challenge of a language barrier. According
to the Bl-5197
form, it was completed by the Applicant with the
assistance of an interpreter, whose name was Abdi Hamid, a Somalian
with O levels
education. Although the Applicant's education was left
blank in the Bl-5197 form, he had in his Affidavit indicated to have
been
educated at a private primary school, and was only unable to
attend high school. The RSDO recorded his response to a question
about
his highest qualification in education to be a Standard 8. The
challenge of a language barrier was therefore not real when he and
the interpreter could speak the same language and his understanding
of English of a moderate or fair standard. Applicant also signed
to
confirm that he has submitted the information and attested to its
truthfulness and correctness. He therefore would not have
been
prejudiced by the assistance he received from the interpreter whose
purpose was actually nothing other than to assist him
and make sure
that he understood what information was required in order to properly
comply with the process for due assessment.
He
was also able to raise issue regarding the incorrect age recorded
in
the form
and deny that he said his
family fled to a rural area as is reflected on the RAB (RSDO)
decision.
I will revert to this
denial later in the judgment.
[48]
The Applicant also attended two RAB Appeal Hearings, the first having
been aborted due to the
resignation of the Chairperson. However at
the first appeal hearing the Applicant attended and made a personal
call to not only
have his own interpreter available but also a legal
representative, who certainly must have taken him through the process
and assisted
him to also file the Affidavit in support of the Appeal
and the Condonation Application. The same Affidavit dated 23 January
2013
was filed in support of the Condonation Application in terms of
Rule 6 of the Refugee Appeal Board Rules, he also made in the second
hearing on 12 February 2014. In addition, in the Notice of Appeal
Hearing of the first and second hearing, he was advised of his
right
to bring a competent interpreter if he is not able to speak English
and a legal representative. The use of legal services
as well as the
interpreter services at the Appeal hearing is a personal choice; see
s 24 (4) and Regulation 5. Unlike what he did
at the first hearing,
Applicant exercised his right not to bring either a legal
representative or an interpreter at the second
hearing. In
consideration of his level of education, and the fact that he was
aware of the choices he had, having been notified
and exercised them
before, going through the same proceedings for the second time, the
Applicant could not have been expected to
be compromised by
exercising his personal choice not to have an interpreter or legal
representative present, which he was entitled
to do.
[49] As a result
the RAB's continuation with the appeal hearing in the absence of an
interpreter or
legal representation as per choice of the Applicant
did not result in an irregular or a procedurally unfair proceedings
nor did
it result in the violation of his rights as safeguarded by
the Constitution.
Legal context on Refugees / Asylum
seekers
[50]
The legal framework within which the Application is to be considered
is within the provisions
of Section 3 of the Act that reads:
A person qualifies for refugee
status for the purposes of the 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 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 of the whole of his or her country 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.
[51]
The purpose for the provisions of s 3 of the Act is to protect
foreign nationals who are in South
Africa and cannot return to their
home countries for fear of persecution on the basis of grounds stated
therein. Section 3 must
be read with s 2, which contains a general
prohibition against the return of a person to any country where life,
physical safety
or freedom will be threatened.
[52]
Both provisions to be construed
generously
in favour of persons seeking to qualify for asylum. The
Refugee
Act is essentially a means preventing the sending back of an
individual to a state in which a risk of persecution on political
grounds or opinion exists. This is evidenced by the Act's title and
preamble that provides that:
'to give effect within the
Republic of South Africa to the relevant international legal
instruments, principles and standards relating
to refugees; to
provide for the reception ln to South Africa of asylum seekers; to
regulate applications for and recognition of
refugee status; to
provide for the rights and obligations flowing from such status; and
to provide formatters connected therewith'.
[53] The
preamble further 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'. As noted in
Radjabu
supra, at para 4, s 2 of the Act is
manifestly premised on the expressions of the non-refoulment
principle in Article 33 of the
1951 Convention and the 1969 OAU
Convention
[54]
Section 6 (1) of the Act expressly enjoins that the statute be
interpreted and applied with due
regard to various international
instruments including the 1951 Convention and 1969 OAU Convention.
Allegation
of misapplication of the Law The burden of proof
[55]
Regulation 11 provides that:
(1)
The
applicant bears the burden of proof to establish that he or she
is a refugee as defined in section 3 of the Act and is not excluded
from refugee status pursuant to section 4 of the Act.
(2)
In
the absence of documentary evidence,
an
applicant's credible testimony,
in
consideration of conditions in the country of feared persecution or
harm,
may suffice to establish
eligibility for refugee status.
However,
the Refugee Status Determination Officer may request the applicant to
provide documentation, where available.'(my emphasis)
[56]
The Applicant has contended that the manner in which the RAB applied
the burden of proof was
incorrect, which is as stated in paragraph 8
of the RAB decision that
"the Applicant is to show that he is
entitled to refugee status, and that the standard of proof is that of
a reasonable possibility
of risk."
It is said to be
inconsistent with the test applied when determining the strength of
the person's refugee claim as provided for
in the
UNHCR Handbook
on Procedures and Criteria
for determining refugees status. The
Applicant submitted that the
UNHCR Handbook enjoins the
adjudicator to meet the asylum seeker halfway, and assist with the
resources at its disposal in proving
the asylum seeker's claim.
[57]
The Applicant argued that RAB's approach on the application of the
test for proving refugee status
in the manner described by it in
paragraph 8 overlooks the role that the RAB itself should play in
evidence gathering to assist
the Applicant in proving his case, to
that extent, the RAB failed in its duty.
[58]
Taking into consideration the provisions of Regulation 11 (1) that an
asylum seeker bears the
burden of proof for purposes of establishing
that he is a refugee as defined by the Act, Murphy J held in
Tantoush
v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA
232
(T), [97] that: 'this does not require an Applicant for asylum to
prove a real risk of persecution on a balance of probabilities.
The
appropriate standard is one of a reasonable possibility of
persecution'.
Which is the same approach that was considered by
the RAB except that it referred to 'a reasonable possibility of
risk'
which I regard to be even more accommodative. Murphy J at para
196-197, gave the following summary, premised on the guidelines ln
the UNHCR Handbook, of the manner in which the Appeal Board should
proceed:
"196.
Thus, while the
burden of proof
in
principle rests on the applicant, the duty
to ascertain and evaluate all the relevant facts is shared between
the applicant and
the examiner.
Indeed in some cases, it may be
for the examiner to use all the means at his disposal to produce the
necessary evidence in support
of the application. Even such
independent research may not, however, always be successful and
there
may be statements that are not susceptible of proof.
In
such
cases, if the Applicant's account appears credible, he should, unless
there are good reasons to the contrary, be given the
benefit of the
doubt."
[59]
The statement was made in consideration of the fact that in most
cases a person fleeing from
persecution will have arrived with the
barest necessities and very frequently even without personal
documents. As a result an allowance
to be made for the difficulties
that an expatriate applicant may have to produce proof and
recognising the duty of an examiner
to himself gather evidence.
However if all fails the determining factor being the credibility of
the information. Murphy J therefore
went further in recognising such
an instance that, in terms of the handbook:
“
197.
The
requirement of evidence should thus not be too strictly applied in
view of the difficulty of proof
inherent in
the
special
situation
in which an applicant for refugee status finds himself.
Allowance
for such possible lack of evidence does not, however, mean that
unsupported statements must necessarily be accepted as
true if they
are inconsistent with the general account put forward by the
Applicant.”
[60] The
power of the RAB as an Appellate Body is indeed as described by
Murphy J in
Tantoush
at
[19] wherein he states that:
"As already explained,
because of RAB's powers to gather additional evidence, the intention
of the legislature was to confer
upon the RAB an appellate
jurisdiction in the wide sense, meaning that it is not bound to
pronounce upon the merits within the
four corners of the record of
the RSDO. An ordinary Appeal is one where the Appellate body is
confined to the record of the body
appealed against.
A wide appeal
is one in which the Appellate body may make its own enquiries and
even gather
its
own evidence, if necessary.
Evaluation
[61]
In the appeal hearing, the Applicant was asked questions by the RAB
on information they
deemed necessary. Applicant had on his own as per
the onus he bore initially furnished the following information in his
81-1579
form as reasons why he was seeking asylum in South Africa,
that "he fears for his life that is in danger as the interim
Government
and warlords are fighting in the country. The place he
lives in Somalia was Southern Somalia were the war was serious as a
result
he decided to leave the country." He had indicated during
the RSDO interview that "He fled because of the civil war
whereupon
his place was destroyed and he had no place to go. His
parents are living in the rural arrears and he cannot go there
because life
is too difficult there. He also indicated that he left
Somalia on 03 October 2009 and entered South Africa on 2 December
2009,
entering through the Beit Bridge border. In the Bl- 1579 form
he indicated to have transited through 5 countries, having spent 5
days in Kenya, 1 day in Tanzania, 1 day in Malawi, 5 days in
Mozambique and 1 day in Zimbabwe which is only a total of 13 days,
leaving one (1) month and 17 days unaccounted for. He also could not
submit a passport/travel document and or identity document.
The RAB
adopted the same approach as is maintained by Murphy J in
Tantoush
asking questions to seek
clarification from the Applicant in the absence of any documents to
prove the Applicant's account of events
that he claims entitles him
asylum.
[62]
It is imperative to take into account what is advocated by the UNHCR
Handbook sensibly,
which implores the RAB to make its own enquiries
and gather more information in order for a proper assessment to be
made
but not for a decision to be
made on skimpy information.
Also
that unsubstantiated statements that are inconsistent with the
general account by the Applicant are not to be accepted as true.
The
Applicant's argument that on the basis of his claim that is recorded
by the RSDO 'that he fled because of civil war' the RSDO
should have
found that to be a ground for refugee status or for granting him
asylum on s 3 (b) is misguided. It would have resulted
in a decision
that is made on skimpy information. It therefore had to be probed
then assessed.
[63]
It was therefore appropriate for the RAB to have made more enquiries
from the Applicant to give
him an opportunity to expatiate on the
statements and the reports which he has referred to so that his claim
can be properly assessed.
It is unfortunate that it is from these
enquiries that it became apparent that the Applicant's statements
were inconsistent and
had also a period of his sojourn in other
countries that is unexplainable. He rather blames such
inconsistencies and gabs on the
interpreter who translated for him at
RSDO: TIRRO, which blame has been shown to have no merit. On the
basis of insufficient, inconsistent
and incongruent information
supplied by the Applicant which can only be proven by him, the RAB
was correct in its assessment and
finding that the Applicant has not
discharged the burden of proof that was on him to show that he is
affected in terms of s 3 (a)
or 3 (b), or that there was a reasonable
possibility of persecution if he is returned.
[64]
Furthermore, on further enquiry Applicant's story that he had fled
his home country because of
the civil war that was raging at the time
gained a different dimension. The facts changed to indicate that the
real issue was a
fallout with Al Shabaab due to his way of living
which was in the western way, listening to Tupac music, playing
soccer and his
refusal to go to the mosque upon which AI-Shabaab
warned him not to do it otherwise he would be killed or attacked. He
had stayed
on that part of the country in Ceelashabiyah for a long
period of time having arrived from Mogadishu as a boy, being looked
after
by a neighbour and grown up to a young man, gaining employment
for some time with no disturbance of a war. He was there for a period
of 3 years. There was also never a personal attack on him or
complaint of an insurgence in the area at the time he decided to
leave the Ceelashabiyah, bar being influenced by his friend. The RAB
also considered that he chose not to live in other parts of
the
country such as Kismayo where his origin is strongly rooted.
[65]
His claim that he fled due to a civil war that was taking place was
therefore deemed by the RSDO
to be unfounded, and that he has not
discharged the burden of proof as he was unable to show a reasonable
possibility of risk,
which was a fair assessment of his claim. His
claim could not have been said to conform to the provisions of s 3
(a) or (b) in
that there was no facts that indicate a well founded
fear of personal persecution or if owing to external aggression he
had any
apprehension of danger. In
Bolanga
at
para
34
the court held that the test is not whether the risk is imminent but
whether it is real. The Applicant as indicated was also
unable to
account for the other times of his travels and stay in some other
parts of Somalia. He had not complained of any war
waged or about a
volatile situation in those parts of his home country. He also
insisted on the fact that he had remained in transit
in the boat or
ship when they stopped in the other countries they travelled through.
On the other hand he had alleged to the RAB
to have stayed in Kenya
for a period of nearly a month. Whilst he had also furnished
information in his Affidavit that he remained
in transit in Kenya for
only 12 hours. He also stayed in Mozambique for some days without any
threats of persecution on his life,
both countries being stable.
[66]
As a result the allegation that there was a misapplication of the
burden and standard of proof
by the RAB which has led to it coming to
a wrong conclusion that Applicant has failed to discharge the burden
that rested on him
is inaccurate. The Applicant has failed to submit
any evidence of persecutory circumstances, that is the prospective of
torture,
as is defined in s 3 (a) of the Act as well, even at the
time when he left the country. The finding that the Application is
unfounded
means that it does not pass muster for the granting of
asylum to the Applicant having failed to discharge the burden of
proof.
It is obvious that the decision was based on the credibility
of Applicant's account, thus a reference to "Credibility."
Misapplication of s 4 {d) of the
Refugees Act
[67]
The Applicant denies that he stayed in Kenya and Mozambique during
his transit but allege to
have used the two countries as his travel
routes to South Africa. He argued that a wrong inference was drawn by
the RAB that he
was unqualified to gain refugee status for the reason
that he took residence in these countries where he enjoyed
protection. Further
that he left Kenya because of unbearable living
conditions which is misplaced and unsupported by facts. He argues
that the RAB,
as a result of this flaw misapplied the provisions of s
4 (d) in an attempt to discredit him as an eligible candidate for
recognition
as a refugee as he already enjoyed protection of Kenya or
Mozambique. He however without tendering an explanation of what had
really
happened submits that he is entitled to be and to remain in
South Africa as dictated by the
Refugees Act that
gives effect to
South Africa's Constitutional and International law Obligations
towards asylum seekers and refugees.
[68]
Section 4
is an exclusionary clause, constituting of grounds that
disqualifies a person from being awarded refugee status. Only the
provisions
of
s 4
(1) (d) are relevant to the Applicant's
circumstances. It reads:
"A person does not qualify
for refugee status for the purposes of this Act if there is reason to
believe that he or she-
(a) to (c)...,
(d) enjoys the protection of
any other country in which she or he has taken residence
[69] As
already indicated that the Applicant has after he left Somalia been
resident in Kenya for a period
of nearly a month, a version he gave
to the ARB. He now disputes such a fact, however has failed to
furnish an explanation of where
he was during that period of nearly a
month, only accounting for the 13 days of his alleged travelling
prior to reaching South
Africa. Information that he has brought to
hand before the ARB indicate that he travelled through Kenya and
Mozambique, two countries
that are stable. He was resident in Kenya
for some time where his life was not allegedly threatened. In his
Founding Affidavit
he has failed to give a satisfactory explanation
of his activities during that period. He alleged to have been in
transit for 12
hours in Kenya en route to South Africa and never to
have left the boat until they left Kenya. He advised the RAB that he
did not
want to stay in these two countries as he felt there was no
democracy. He went to Kenya where he stayed for a month and nothing
happened to him. He kept on reiterating to the RAB that he did not
have an interpreter at the RSDO (even though he did), probably
to
explain the lacuna in his evidence that was inconsistent with the
information in his Bl -1590 form and to the RSDO. He has already
conceded that there was an interpreter at TIRRO of Somalian origin
and he has also denied that he is uneducated and insisted that
he had
a private primary school education. He therefore cannot attribute the
discrepancy to not having an interpreter or lack of
education. He
also did not insist in having an interpreter present or legal
representative at the RAB hearing like at his first
appeal hearing.
The information regarding Kenya was correctly enquired upon,
considered in the assessment of his claim to see if
he is not
excluded by the fact that he had remained in a country for a month
that is stable and with no threat of persecution but
decided to
follow his friend to South Africa. At that point coming to South
Africa was not due to persecution or fear of persecution.
[70] He has
indicated that his was a pursuit for a better life and would not
return to Somalia
as he fears for his life. Under such circumstances
the RAB was correct in considering that what he has mentioned as to
make him
fear for his life does not amount to a justified ground to
create a well-founded fear of persecution, ie, that endangers his
life
or freedom, but motivated more by a pursuit for a better life,
since even when he lived in a stable country with no threat to his
life or of insurgence he decided to still move to South Africa for a
better life, which information could not have been overlooked
by the
RAB in a fair assessment of the whole evidence. The Applicant
required the RAB to only concentrate on the fact that he mentioned
'fearing for his life due to a civil war in his country' in order to
find that he is a refugee to be granted asylum. That is regrettably
contrary to what is advocated in Bohang that the Applicant's fear and
risk should not only be imminent but be real. It was appropriate
for
the RAB to determine whether Applicant's fear was real. The RAB could
not have sought more information from the UNHCR. Applicant
was there
and had, himself supplied the information required about his
residence and travels. He did not have any documentation,
The
exchange as recorded does not indicate a misunderstanding.
[71] He has
also indicated to have stayed in Zimbabwe although he now denies ever
been in that
country. The information was furnished to the RSDO. The
consideration of that information to determine the Applicant's
exclusion
would be fair under the circumstances.
Misapplication of s 3 (a) and
failure to apply s 3(b)
[72]
It was argued by Mr Lebetso that Applicant's desire for asylum stems
from both s 3 (a)
and (b) that is from individualised persecution and
the generalised conflict in his home country. Personalised as he has
become
a target due to Al Shabaab having bombed and killed his other
family members and years later when they accused him of being
pro-Western
in his conduct. Under generalised conflict, when the
security situation in Somalia where both Al Shabaab and the OAU
military forces
operated, made it unsafe for him to remain in the
country without the risk of losing his life. The latter situation was
overlooked
by the RAB who only concentrated on the personal
persecution.
[73]
Under the 1951United Nations Convention, a refugee can be a
"convention refugee" who
has left his home country and has
a well-founded fear of persecution for reasons of race, religion,
nationality, political opinion
or a membership in a particular group.
Under the same convention a refugee can also be a person "in
need of protection"
whose removal to his home country would
subject him personally to a danger of torture or to a risk to his
life or a risk of cruel
and unusual treatment or punishment. However
convention refugees and persons
in
need of protection based
on a risk of life, or a cruel and unusual treatment must have faced
personally the risk all the way through
in
the country in
question.
[74]
In respect of determination by the RAB if the Applicant conforms to
the generalised conflict
situation, Ms Rantho argued that when an
asylum seeker is shown to have true access to internal protection
inside his or her own
country, refugee status need not be recognised,
which is an internationally recognised practice. She indicated that,
that is what
was considered by the RAB. He referred to the writing by
James C Hathaway and Michelle Foster on "Internal Protection/
Relocation
/Flight Alternative as an aspect of Refugee Status.
[75]
The Applicant has indicated that he has elected not to stay in other
parts of Somaliyo like Kismayo
where his origin is strongly rooted
and elected to come to South Africa on an influence by a friend. The
Applicant did not face
personal persecution all the way through in
his home country. He indicates that he left Ceelashabiyah weeks after
the alleged once
off threat from AI-Shabaab about his playing soccer
and listening to Tupac music. It did not come in the midst of war. He
decided
to join Abdurahman to Kismayo. The place is closer to the
Kenyan border. He did not speak of conflict or facing any personal
risk
when he was there, but that whilst they were there Abdurahman
told him he wanted to travel to South Africa. He resolved to travel
with Abdurahman, not compelled by any volatility in that part of
Somalia were they spent a week. Such circumstances where correctly
taken into consideration by the ARB when it arrived at a decision
that Applicant had not shown a well- founded fear that resides
under
s 3 (b) to be granted asylum.
[76]
From the decision it is also obvious that his other reason for
fearing for his life was as completed
in his B1-1579 form which is
just 'fearing for his life which is in danger. Further that the
interim government and Al Shabaab
are fighting in the country. The
place he lived in Somalia was Southern Somalia where there was
serious war. His parents had to
relocate to a rural area where life
is unbearable, he as a result decided to live the country. He
therefore came to South Africa.
It was rejected as unfounded pointing
out at the inconsistencies. The reports attached refer to death by
starvation due to aids
that has been blocked. The UN declared the
famine to have ended in 2012.
[77]
There is also no basis for the argument by the Applicant that ARB
ignored the reports on the
situation in Somalia at the time of his
application when he had stated that there was war in Somalia. To the
RAB, he in his affidavit
dated 23 January 2013 alleged that he fled
his home country with his family after his grandfather, uncle and
brother were killed
and his mother brutally assaulted in front of his
eyes. They managed to escape by the grace of god and proceeded to
South Africa
as their destiny of protection. The RAB had to consider
all the accounts that have been given by the Applicant so far
including
the relevant reports on Somalia to establish if the alleged
external or internal aggression would have been a cause for a well-
founded fear under s 3 (b). The Applicant was subjected to a fair
process procedurally and substantively and therefore there is
no
cause for the decision to be reviewed or to set aside the decision of
the RSOO and RAB as sought by the Applicant.
[78]
The court is aware that in certain cases where there are apparent
inconsistencies in the statements
provided by the Applicant, the
practice Is rather to remit the matter to the RAB for further
consideration and investigation. However
the inconsistencies and
incongruences on his account of events devalues its credibility,
since it is also not capable of verification
due to the fact that he
lacks any authenticated documentation and his alleged mode of travel
was unconventional. Any further investigation
would serve no purpose.
Misapplication of
s 24
(2) of
the
Refugees Act
[79
]
The RSDO contravened s 24 (2) of the Refugee Act which provides
that when considering an application for refugee status due regard
is
to be had to the rights set out in s 33 of our
Constitution
ensuring that the Applicant fully understand the procedures, his or
her rights and responsibilities and the evidence
presented,
which
is the prerequisite to the making of a decision under s 24 (3) of the
Act.
[80]
It is further submitted by the Applicant that the RSDO decision is no
decision as is contemplated
in s 24 (2) in that it is unlawful,
irrational and procedurally unfair in that it neither contains nor
provides reasons imposed
under s 33 (2) of the Constitution. In its
decision it records that he fled Somali by reason of civil war. The
relevant sections
3 is quoted without any linkage of his situation to
the section but as a matter of formality without attaching any value
or substance
to it. In so doing wrongfully negating the rights
accruing to him under subsection (a) and (b).
(81] The Applicant's contention in
this regard is similar to the contention he raised on the procedural
fairness of the RAB and
the RSDO processes. The fact that the
Applicant had access to the services of an interpreter who was from
the same home country
and with O level qualifications rules out that
the Applicant might have been subjected to a process that he could
not understand
and therefore his rights compromised.
[82] The
RSDO furnished the Applicant with a decision in writing. The reasons,
albeit very brief,
formed part of the decision. The RSDO also
referred to Credibility as well. The reasons may not be lengthy or be
accepted by the
Applicant however they dealt with other information
that was considered, including incidents of safety and that there is
no war.
Violation of the principle of
non- refoulment
[83]
At the heart of the Refugee law is
the principle of non-refoulment (non-return).
Section
2 of the Act establishes a general prohibition of refusal of entry,
expulsion, extradition or return to other country in
certain
circumstances. It reads:
2.
Notwithstanding any provision of this Act or any other law
to the
contrary, no person may be refused entry into the Republic, expelled,
extradited or turned to any other country or be subject
to any
similar measure, if as a result of such refusal, expulsion,
extradition, return or other measure, such person is compelled
to
return to or remain in a country where-
(a)
he or she may
be subjected to persecution on account of his or her
race, religion, nationality, political opinion or membership of a
particular
social group; or
(b)
his or her
life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination or
other
events seriously disturbing or disrupting public order in
either part or the whole of that country.
[84] Applicant
has argued that the RSDO and later RAB's decision has the effect that
he will, if not
rescued by the intervention of this honourable court,
eventually face the expulsion from this country or deportation to
Somalia.
He is advised that if expelled or deported, South Africa
would have violated his human rights under the
Refugees Act, the
Constitution and International Law,
for his re-entry into Somalia
has the potential that he will suffer physical harm or even death.
[85] In
Saidi
and Others v Minister of Home Affairs and Others
(2018] ZACC 9
Madlanga J captured the essence of the principle of non-refoulement
when he stated that 'This is not about non return
for the sake of it;
it is about not returning asylum seekers to the very ills
recognised as basis for seeking asylum- that
were the reason for
their escape from their countries of origin.' Having given
consideration to the grounds that Applicant submitted
to the RSDO and
RAB for having left Somalia and his sojourning in the neighbouring
Kenya, and ultimately arriving in South Africa
and what has motivated
his final move to this country, there is nothing that has been placed
before the two bodies that indicates
real threat to his life,
physical safety or freedom at his home country. He has been found to
have relied on general instability
that he alleged was prevailing.
[86]
The non-refoulment principle has been found by the European Court of
Human Rights in a Hirsi
Jamaa unanimous Judgment, to not admit any
reservations, with Judge Pinto de Albquerque highlighting the
principle's peremptory
nature by stating that:
"When
there is risk of serious harm
as a
result of foreign
aggression, internal armed conflict, extrajudicial death, forced
disappearance, death penalty, torture, inhuman
or degrading
treatment, forced labour, trafficking in human beings, persecution,
or trial based on a retroactive penal law or on
evidence gathered by
torture or inhuman and degrading treatment in the receiving State,
the obligation of
non- refoulement
is an absolute obligation."
[87]
This indicates how serious the issue of non refoulement is viewed by
the courts and therefore
reliance on a general report on the
historical situation of a country which does not refer to real and
imminent danger to the asylum
seeker as submitted by Mr Lebetso, is
not what was envisaged by s 2. The RAB had to establish if there was
a factual likelihood
that Appellant will face persecution if he goes
back to Somalia. Considering the Applicant's account and claim,
understandably,
the RAB could not reach such a conclusion. There
might be hardship in acclimatising but no war reported or possibility
of reasonable
risk that the Applicant will be exposed to the
atrocities referred to in s 2 if he is to return to his home country.
[88]
Under the circumstances the following order is made:
THE
ORDER
1.
The Application is dismissed with no order as to costs.
N
V KHUMALO J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION: PRETORIA
For
the Applicant:
Mr Letsebe
Instructed
by:
LAWYERS FOR HUMAN RIGHTS
Johannesburg Law Clinic
Tel: 012 320 2943
Ref: Elemari Temperman
For
the Respondents:
Ms Rantho
STATE ATTORNEY, PRETORIA
Tel: 012 309-1515
Ref: Ms n Fudumele