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[2019] ZAGPPHC 78
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Somali Association of South Africa and Others v The Refugee Appeal Board and Others (99766/15) [2019] ZAGPPHC 78 (30 January 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTHAFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
OF
INTEREST TO OTHER JUDGES
(3)
REVISED
CASE
NO: 99766 /15
Date:
30 January 2019
In
the matter between:
SOMALI
ASSOCIATION OF SOUTH AFRICA
1
st
Applicant
HASSAN
ABDINASIR
OSMAN
2
nd
Applicant
ALI
JAMAC
KHAYRE
3
rd
Applicant
ABDULKADIR
MOHAMED OMAR
4
th
Applicant
ABDURAHMAN
ALI
MAHAMAD
5
th
Applicant
MOHOMED
AHMED
6
th
Applicant
MOHAMED
AHMED
7
th
Applicant
MARYAMA
MAHUMED KAHlN
8
th
Applicant
ABDULLA
BASHIR HASSAN
9
th
Applicant
and
THE
REFUGEE APPEAL
BOARD
1
st
Respondent
CHAIRPERSON:
REFUGEE APPEAL BOARD
2
nd
Respondent
THE
MINISTER OF HOME
AFFAIRS
3
rd
Respondent
THE
DIRECTOR- GENERAL OF THE DEPARTMENT
OF
HOME
AFFAIRS
4
th
Respondent
THE
TSHWANE INTERIM REFUGEERECEPTIO OFFICE
5
th
Respondent
THE
PRETORIA REFUGEE RECEPTION OFFICE
6
th
Respondent
THE
STANDING COMMITTEE FOR REFUGEE AFFAIRS
7
th
Respondent
Summary:
Application for an order reviewing and setting aside decisions of the
Refugee Appeal Board;
Condonation in terms of section 9 of
Promotion of Administrative Act 3 of 2000; Refugees Act
-
eligibility for refugee status in terms of Section 3; meaning and
application of "persecution" in Section 3 (a);
applicability
of Section 3 (b) test; requirement of personal life
threat exposure within context of "persecution" and
compulsion to
flee own country;
JUDGMENT
MLAMBO
JP
Introduction
[1]
The displacement of persons as a result of armed conflict remains a
challenge globally
today. The challenge has become exacerbated by
violent activities of extra parliamentary military organisations
vying for power
against other such organisations as well as against
Government forces. Examples are the Syrian conflict and in this
continent,
the ongoing armed strife in parts of the Democratic
Republic of the Congo. There are also widely publicised violent
attacks carried
out in other parts of the continent such as those by
Boko Haram in Nigeria and by Al Shabaab in Somalia and Kenya. The
inevitable
consequence of such violent activities is that persons
targeted by combatants or caught up in areas experiencing armed
conflict
become dis place d, as they have no alternative but to leave
their homes and seek refuge in other areas within the same countries
or in other countries to escape harm and the inevitable lo ss of
life. This displacement always results in humanitarian crises
in
terms of the accommodation of these refugees wherever they find
themselves in.
[2]
It was due to this refugee crisis around the globe, especially after
the second world
war that the Unite d Nations adopted the
United
Nations Convention Relating to the Status of
Refugees of
1951 ("Refugees Convention'').
This was followed by the
adoption of a Protocol in 1967. On this continent the then
Organisation of African Unity (OAU) also adopted
a regional
instrument to address the continental refugee crisis, known as the
Organisation of African Unity Convention Governing the Specific
Aspects of Refugee Protection of 10 September 1969 ("OAU
Convention'').
The primary objective of these international
instruments was to make provision for humanitarian principles
regarding the treatment
of refugees and asylum seekers in general and
more importantly the treatment of refugee and asylum seeker
application s lodged
by persons alleging forced displacement from
their countries of origin . An important principle comm on to the
Convention s is
the incorporation of the
non refoulement
principle
which effectively means that no person may be refused asylum in
another country where that person faces real threats to
his or her
life especially Iife threatening persecution in such person's country
of origin should he be refused asylum.
[3]
This country ratified the Refugees Convention and its 1967 Protocol
as well as the
OAU Convention . In addition , South Africa
promulgated the Refugees Act 130 of 1998 (The
Refugees Act). This
ac
t gives effect to the international conventions and incorporates them
int o South African domestic la w. The
Refugees Act provides
the
framework within which South Africa carries out its international
obligations regarding refugees and asylum-seekers. The principle
of
non refoulement
is firmly entrenched in the
Refugees Act as
the yardstick against which refugee and asylum seeker application s
are to be considered and generally treated in this country.
Section 2
of the
Refugees Act provides
:
"
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 returned 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.
"
[4]
In
Ruta
v
Minister
of Home Affairs
[1]
the
Constitutional Court affirmed the overarching importance of this
provision in the following terms:
"[24]
This is a remarkable provision. Perhaps it is unprecedented in the
history of our country's enactments. It places the
prohibition it
enacts above any contrary provision of the Refugees Act itself - but
also places its provisions above anything in
any other statute or
legal provision. That is a powerful decree. Practically it does two
things. It enacts a prohibition. Bui it
also expresses a principle:
that of non refoulement, the concept that one fleeing persecution or
threats to "his or her life,
physical safety or freedom"
should not be made to return to the country inflicting it.
[25]
It is a noble principle
-
one
our country, for deep-going reasons springing from persecution of its
own people, has emphatically embraced. The provenance
of
section 2
of
the
Refugees Act
lies in the Universal Declaration of Human Rights
(Universal Declaration), which guarantees "the right to seek and
to enjoy
in other countries asylum from persecution".
South
African Courts have taken a keen interest in developing refugee law
jurisprudence, as acknowledged by the Constitutional Court
in
Ruta.
This matter presents yet another opportunity to consider the
evolution of our refugee law juris prudence.
[5]
In this
application, in terms of the Promotion of Administrative Justice Act
3 of 2000 ("PAJA"), the applicants seek:
(i) orders
reviewing and setting aside the decisions of the RAB dismissing the
asylum seekers' appeals; (ii) orders substituting
the RAB decisions
with decisions upholding the asylum seekers' appeals and granting
them asylum; (iii ) orders compelling the relevant
Refugee Reception
Offices to issue the asylum seekers with the necessary written proof
of their refugee status. The applicants
also see k, what they term
systemic relief to the effect that certain declaratory orders be
granted to ensure that the RAB does
not commit certain alleged errors
in its future decisions. The applicants further seek a structural
interdict to require the Minister
and Director General to investigate
the causes and extent of these alleged errors and to create a plan to
address the said alleged
defective decision-making coupled with an
order to report to this Court.
The
Parties
[6]
The first
applicant is the Somali Association of South Africa (Somali
Association), self styled as a non-profit organization
established to, amongst others; serve the interests of Somali
refugees and asylum seekers in the Republic of South Africa . The
second to the ninth applicants are the individual asylum seekers (the
asylum seekers) on whose behalf the Somali Association acts
in this
matter. The first respondent is the Refugee Appeal Board (the RAB)
and is the appellate entity established by
section 12
of the
Refugees
Act, to
hear and determine asylum seeker appeals from decisions made
by Refugee Status Determination Officers (RSDO) rejecting and/or
refusing
to grant refugee status. RSDO's are established by
section 8
(2) of the
Refugees Act and
are officers who consider asylum seeker
applications at first instance.
[7]
The
second respondent is the Chairperson of the RAB and holds office as
prescribed in
section 13
(1) of the
Refugees Act. The
third
respondent is the Minister of Home Affairs, the member of the
Executive branch of the State charged with the responsibility
to
administer and direct the asylum and immigration obligations of the
Republic of South Africa in terms of the
Refugees Act. The
Minister
carries out his refugee and asylum responsibilities through the
Department of Home Affairs which is charged with the responsibility
of attending to the application and implementation of the provisions
of the
Refugees Act. The
fourth respondent is The Director General of
the Department of Home Affairs and is accountable to the Minister.
The fifth respondent
is the Tshwane Interim Refugee Reception Office
and the sixth respondent is the Pretoria Refugee Reception Office.
These offices
were created by the Director General in terms of
section 8
( I ) of the
Refugees Act, to
attend and deal with asylum
seekers and refugees who wish to apply for asylum and be granted
refugee status in the Re public of
South Africa. The seventh
respondent is the Standing Committee for Refugee Affairs and is also
a creature of the
Refugees Act in
terms of
section 9
thereof. Nothing
much turns on the provisions in terms of which these functionaries
are established save perhaps for the RAB, as
it is its treatment of
the appeals of the asylum seekers that is central to this matter. In
this regard
Section 1
2
(3) provides that the RAB must function
without any bias and must be independent.
The
Facts
[8]
The asylum seekers applied for asylum, in the Reception offices cited
as respondents,
at different times when they arrived in SA. their
applications were rejected by the RSDOs, as unfounded in terms of
section 24
(3) (c)
[2]
of the
Refugees Act. They
lodged appeals to the RAB against such rejections
but the RAB dismissed their appeals. lt is the RAB' s decisions
dismissing the
appeals that are impugned in this application.
[9]
The asylum seekers, in this application , rely exclusively on the
situation in Somalia
as a basis for their quest for refugee status in
this country. They set out, in their affidavits, the history of the
civil war
in Somalia , as well as what they allege is the prevailing
situation there impelling them to seek refugee status in South
Africa.
The asylum seekers further sketch the circumstances they
allege caused them to flee Somalia. They each assert that the civil
war
situation in Somalia was the reason they left Somalia to seek
refuge in South Africa. They all blame Al-Shabaab as the predominant
cause of the instability in that country. According to a number of
reports, cited by the applicants, Al-Shabaab is active predominantly
in central and southern Somalia and has been blamed for several
so-called terrorist attacks and is fingered as the primary instigator
of political strife and instability in Somalia. All the asylum
seekers resided in Mogadishu and in its surrounding areas, located
in
central and southern Somalia.
[10]
The applicants assert that Somalia has been in a state of civil war
since 1990 and they make
reference to publications especially by the
United Nations High Commissioner for Refugees (UNHCR) that between
500,000 and 1,000,000
civilians are estimated to have died in the
conflict to date. According to this narrative the period between 2006
and 2012 was
one of the most intense periods of the conflict, marked
by Al-Shabaab' s rise to power and which led to foreign military
interventions
by the African Union, Ethiopia and Kenya , among
others. According to the reports cited by the applicants, Al-Shabaab
still retains
effective control of large swathes of southern and
central Somalia and continues to launch attacks in and around
Mogadishu. This
is documented in the 2014 UNHCR Guidelines on
conditions in Somalia which notes that approximately 80 per cent of
Southern and
Central Somalia remained under Al- Shabaab control in
2013. The applicants refer to the report published in 2015 by the
United
Nations Human Rights Council's Independent Expert on the
situation of human rights in Somalia who made, amongst others, the
following
statement:
"The
Independent Expert remains of the view that in spite of the gains
made by the SNA [Somali National Army] with the support
of AMISOM
troops to recover territory from Al Shabaab, the security
situation in many parts of Somalia, particularly in the
south
central regions, is not safe or stable enough to receive returnees.
Premature returns increase the likelihood of those
refugees becoming
displaced persons facing the same protection challenges as those that
are currently displaced. "
Condonation
[11]
This
application was brought well outside the one hundred and eighty-day
period envisaged in PAJA for the initiation of all challenges
reliant
on this act. For that reason, the applicants seek condonation for the
late launching of this application. I am enjoined
to consider whether
the applicants have made out a case warranting the indulgence they
seek. The approach to condonation applications
is dealt with in a
number of decisions of our appellate and apex Courts. See for
instance
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
amicus curiae)
[3]
where our
apex Court enunciated the so-called interest of justice yardstick to
be applied to condonation applications. The applicants
have provided
some explanation for failing to comply with the applicable time
period. Without traversing the reasons advanced it
is so that this
matter requires consideration of important constitutional rights
within the context of refugee Jaw. The matter
involves judicial
consideration of decisions of the RAB which impacts the rights of
asylum seekers and refugees within the context
of
section 2
and
3
of
the
Refugees Act. It
is for this reason that I have decided to
exercise my discretion in favour of granting condonation for the
failure to comply with
the time limits found in PAJA. My view is that
it is in the interests of justice that I grant condonation. The
extent of the delay
is not lengthy and I have also not been told of
any prejudice occasioned by the failure to comply with the one
hundred and eighty-day
period. This is the type of matter that
requires a full and thorough consideration by a Court especially
considering the issues
raised. Clearly condonation is warranted, and
it is accordingly granted.
The
applicant's case
[12]
The
applicant's case is premise d on four primary pillars which they
refer to as common errors committed by the RAB when dealing
with
asylum seeker appeals from RSDO decisions. The applicants contend
that the RAB's decisions are reviewable and liable to be
set aside in
view of these alleged common errors, in respect of all the decisions
it took regarding the appeals of the asylum seekers.
The applicants
argue that the first common error is the application of the wrong
test for refugee status by the RAB. In this regard
it was submitted
that the RAB misinterpreted and misapplied the test for refugee
status under section 3 of the Act. The second
alleged common error is
said to be apparent in the RAB decisions through the application of
the wrong burden of proof test. The
third common error asserted is
that the RAB failed to adopt and apply the correct approach to making
credibility findings. The
fourth alleged common error is said to be
in relation to procedural unfairness allegedly evident in the RAB's
decisions.
[13]
The
applicants further submitted that based on the common errors referred
to above as well as the requirement to have credible decision
making
bodies, a case for structural relief has been made out. The case for
structural relief is premised on the alleged common
errors committed
by the RAB which in the applicants' view, exposes many more Somali
refugees to the same wrongful decision making
. For this reason, the
applicants argue that structural relief is appropriate to ensure that
no further alleged injustice s are
committed by the RAB and RSDOs
when handling refugee applications by Somali applicants. It was
argued that the RAB's defective
decision-making amounts to
constructive
refoulement
as
it exposes asylum seekers to the threat of being returned to their
countries of origin where they face life threatening persecution.
The
defective decision-making by the RAB, it was argued, directly
threatens the constitutional rights of asylum seekers.
Discussion
[14]
This being a review the issue is whether a case has been made out
showing that the RAB decisions
are unjust and unfair within the
contemplation of PAJA, as asserted or at all, that vitiate the RAB
decisions. The RAB derives
its authority and powers from section 14
oft he
Refugees
Act which
provides -
"
14. (1) The Appeal Board must-
(a)
hear
and-determine any question of law referred to ii in terms of this
Act;
(b)
hear
and determine any appeal lodged in terms of this Act;(c) advise the
Minister or Standing Committee regarding any matter which
the
Minister or Standing Committee refers to the Appeal Board.
(2)
The Appeal Board may determine its own practice and make its own
rules.
"
[15]
Clearly
whilst the RAB is by nature an administrative entity, it is
essentially performing an adjudicatory function when it hears
and
determines appeals from RSDO decisions. It is the only entity given
such powers by the
Refugees Act. In
undertaking its responsibilities
in terms of
section 14
, the RAB is essentially performing a public
function. It is prudent therefore when considering the grounds upon
which the RAB
' s decisions are sought to be set aside, to keep in
mind the provisions of
section 14.
Section 33
(1)
[4]
of the
Constitution gives a right to administrative action that is
"
lawful, reasonable and procedurally fair".
[5]
This
being a review brought under PAJA, it is also important to keep in
mind the applicable principles governing the judicial parameters
within which the impugned decisions should be considered. Lawful
administrative action means that
"administrative
actions and decisions must be duly authorised by law and that any
statutory requirements or preconditions that
attach to the exercise
of the power must be complied with.
"
[6]
The
courts have translated this idea of legality into a number of more
detailed grounds of review and PAJA has codified the commo
n-l aw
grounds of review. The Constitutional Court described the interplay
between the performance of public functions and the
latitude to
challenge such performance under PAJA in
Giant
Concerts CC
v
Rinaldo
Investments (Ply) Ltd
[7]
in the
following terms-
"[29]
The Promotion of Administrative Justice Act ("PAJA"), which
was enacted lo realise section 33, confers a right
to challenge a
decision in the exercise of a public power or the performance of a
public function that "adversely affects
the rights of any person
and which has a direct, external legal effect". PAJA provides
that "any person" may institute
proceedings for the
judicial review of an administrative action."
[16]
In any
review challenge to the performance of a public function , at the
core of the investigation is the necessity to consider
the impugned
decision in the light of material that was before the administrative
functionary when it considered the matter. This
means that in this
case, the RAB was constrained to the material before it when
considering the appeals. The RAB cannot be criticised
nor can its
decisions be attacked or sought to be set aside based on material
that was not before it when it considered the asylum
seekers'
appeals. I point this out in relation to the applicants' assertion
that the respondents have not disputed the extensive
evidence
presented in this application. Indeed, it is clear from the papers
before me that most of the documents relied on by them
and the facts
set out in the supporting affidavits of persons other than the
applicants, were not before the RAB when it considered
the appeals.
One must therefore consider the material that was before the RAB and
how it treated same when it considered and determined
the asylum
seekers' appeals .
[17]
One of the documents that features in the record is the so-called DHA
1590 form (DHA form). All persons
wishing to apply for asylum are
obliged to complete this form. This form featured prominently in the
asylum applications and appeals
initiated by the asylum seekers. It
is in this form that all the asylum seekers put to paper the
circumstances that led them to
flee Somalia and why they were in
South Africa seeking asylum . The record also contains the RSDO and
RAB determinations. The RSDO
and RAB determination s set out the
facts placed before these decision makers by each asylum seeker as
well as the views of the
RSDOs and RAB. Considering the review
grounds advanced, the RAB determinations provide an important factual
repository from which
to consider the legal arguments advanced
especially in relation to section 3. In my view the appropriate
manner of considering
this matter is to consider the RAB's treatment
of each individual appeal and how it dealt with the evidence placed
before. After
all the appeals by the asylum seekers were lodged
individually and at different times .
The
RAB proceedings
[18]
The
second applicant informed the RAB that he le ft Somalia in January
and arrived in South Africa in March 2011 and applied for
asylum.
This applicant stated in his DHA Form that he left Somalia due to the
civil war there. He also mentioned this when he applied
for asylum,
and this much is evident in the hearing notes of the RSDO who dealt
with his asylum application. The RAB also recorded
that it appeared
from the RSDO hearing notes that the second applicant was never
persecuted by Al-Shabaab or by Government forces,
that he left
Somalia because
"
there is a lack of peace and stability. He fled his country of origin
and came to SA lo seek protection.
"
[8]
During
the RAB hearing, the record shows that the second applicant also
asserted the civil war as the reason why he left Somalia.
He is
recorded as having stated that his life was in danger and that he was
invited by his brother to come to South Africa. It
is also recorded
that he was never recruited by either Al-Shabaab or by the Somali
Government forces.
[19]
The RAB
then, in assessing the second applicant's appeal stated -
"The
applicant claims that he left his country of origin because of civil
war. He failed to demonstrate that he was harmed
or persecuted in any
way. He merely relied on the fact that he feared to be killed. There
was nothing which shows a sustained and
systemic violation of his
human rights. The appellant managed to stay in country for eight
months nothing happened to him. "
The
RAB then went on to find, that the appellant had suffered no
"persecution or harm in terms of section 3
".
The
RAB concluded with the following statement -
"The
Board finds that he does not have a well-founded fear of persecution.
The appellant was not compelled to leave his country
of origin, he
managed to stay in the same region after his brother's death, 2007
nothing happened to him. There is nothing from
his evidence which
indicated that he was persecuted in his country of origin. The board
finds that he came to South Africa seeking
a better life. "
[20]
ln
respect of the third applicant, the RAB recorded that he was a
resident of Mogadishu. According to this recordal, this applicant
told the RAB that he left Somalia in 2010 as a result of the war and
to feeling insecure. It is also recorded that he mentioned
that one
of h is acquaintances in Mogadishu was allegedly killed by AI-Shabaab
after having received a phone call two weeks prior
to being killed.
The third applicant also allegedly received a phone call subsequent
to his acquaintance's demise and assumed that
whoever was phoning him
intended to kill him as well. This applicant then, fearing for his
life decided to leave Mogadishu for
South Africa.
[21]
The RAB
summed up the matter by first finding that the factual background
sketched in the paragraph above, is what compelled the
applicant to
flee Somalia. To the RAB the killing of the applicant's acquaintance
could not have compelled him to leave Mogadishu.
The RAB stated -
"The
irony of the appellant's claim is that his entire family currently
resides peacefully in Mogadishu; the Board therefore
infers that it
is safe for appellant to return to Mogadishu. The appellant is
however not prepared to go back to Somalia as he
fears that whoever
phoned him will kill him, fears nursed by the appellant in this
regard Is not reasonable and or "well-founded".
According
to the RAB this applicant never made out a case to justify
persecution on the grounds envisaged in section 3 of Act. The
RAB
then concluded that the applicant had not mentioned that he feared
being persecuted,
"be it the past, present and or the
future".
The RAB also concluded that nothing happened to
this applicant which compelled him to flee Somalia for South Africa
and dismissed
his appeal.
[22]
In the case of the fourth applicant the RAB recorded that he did not
belong to a political party
nor was he ever arrested, that at all
material times he resided in Mogadishu. He testified that Al-Shabaab
recruited young men
to join the organisation and that they killed
those who refused to join the organisation. The RAB recorded that he
decided to leave
Somalia before being so approached by AI-Shabaab, in
search of a safe and or better life. He was assisted by his uncle ,
financially
to leave Somalia. The RAB further recorded that his uncle
was subsequently allegedly killed by AI-Shabaab during December 2013,
apparently after he admitted to Al- Shabaab operatives during
interrogations that he had assisted the fourth applicant to go to
South Africa. The RAB recorded the following -
"It
was put to the appellant that the death of his uncle was irrelevant
to his asylum claim due to the long lapse between events.
The irony
of the appellant's claim is that his entire family currently resides
peacefully in Mogadishu, the Board therefore infers
that it i[s] safe
for appellant to return to Mogadishu. Appellant raised new evidence
that he was arrested and or abducted by Al-Shabaab
(between Jan -
April 2009) for a period of two weeks where after he managed to
escape. Appellant blamed the new evidence firstly
on the interpreter
& secondly admitted that he forgot to mention it at an earlier
stage. During the course of the proceedings
it also transpired that
in addition to Al-Shabaab the Government also wanted appellant to
join them; in fact, the Government offered
appellant a job if
appellant joined them & fought against A1-Shabaab in turn".
[23]
In its
conclusion the RAB stated that -
"
The appellant never made out a case to justify persecution on the
grounds envisaged in section 3 of the act... [t]he appellant
failed
to make out an individual claim of what compelled him to leave
Mogadishu ...ln the circumstances the Appeal Board finds
that the
appellant has not discharged the burden of proof which rested on him.
The appellant is unwilling to return to Mogadishu
as he claims that
the presence of Al-Shabaab is everywhere in Somalia and that they are
still killing people, conceding at the
same time that his entire
family is still residing peacefully in Mogadishu. It was the
appellant's testimony that he left before
anything could happen to
him. The Appeal Board finds that the appellant's case is not coherent
and plausible and appellant does
not deserve to be given the benefit
of the doubt."
[24]
Regarding
the fifth applicant , the RAB recorded that he also did not belong to
a political party and that he was at no stage arrested.
The RAB
recorded that he testified that there was a civil war in Somalia ;
that there were a lot of political parties in Somalia;
that the
political parties were fighting with the Government; that Al-Shabaab
came to appellant 's house during the beginning of
2010 and ordered
him to join the organisation and he refused. The RAB further recorded
that he left for Kenya where he remained
for ten days. Furthermore,
the following was recorded by the RAB -
"Appellant
in his DHA 1590& RSDO hearing stated that he left Somalia as a
result of lack of peace and stability; that he
came to SA to get
peace and an education; that he cannot stay in SA without proper
documentation."
The
RAB referred to this applicant's evidence as:
"not
entirely consistent with appellant's oral evidence. Appellant in h is
no tice of appeal amongst other things averred that
when the
situation in Somalia became unbearable for him, he decided to leave
looking for a place of safety and security away from
persecution.
Appellant was silent on what happened to him in Somalia that
compelled him to leave. "
[25]
The RAB
concluded its' assessment of this applicant's appeal with the
following findings
"The
Board is satisfied that appellant does not face a reasonable
possibility of persecution should be return to Mogadishu.
It was not
appellant' s testimony that he left Mogadishu as a result of events
seriously disrupting and or disturbing the public
order in Mogadishu.
The once-off attempt by Al-Shabaab did not compel appellant to leave
Mogadishu. The Board cannot exclude the
possibility that appellant is
an economic migrant in that he voluntarily left Somalia to take up
residence and employment elsewhere.
The Board finds corroboration of
this fact when appellant in his DHA-1590 and RSDO hearing makes
mention of the fact that he came
to SA to get an education and that
he is applying for asylum as he cannot stay without proper documents
in SA. In the circumstance
the Appeal Board finds that the appellant
has not discharged the burden of proof which rested on him.
"
[26]
It
appears from the record that the sixth applicant informed the RAB
that he left Somalia during 2007, then aged 26, claiming that
the
Government in Somalia was defeated in 1991 , that Somalia has been
uncontrollable ever since and that different tribes were
fighting
with each other in the whole of Somalia and Mogadishu. The applicant
told the RAB that he was personally affected by the
fighting in that
different tribes wanted him to join them but he refused. The RAB then
states-
"Appellant
embarked on his journey to SA 16 years post 1991 as he was too young
to leave earlier. This is background information
of what made
appellant leave Somalia during 2007. The standard of proof is that of
a "reasonable risk" and must be considered
in the light of
all the relevant circumstances i.e. past persecution and a forward-
looking appraisal of risk. The appellant in
casu needs to show that
he left his country for specifically politically motivated reasons,
should appellant fail to show this,
appellant’s refugee claim
will be rejected. Taking into account that refugee law is essentially
a means of preventing the
sending back of an individual to a state in
which a risk of persecution on political grounds or opinion exists.
Appellant failed
to highlight an incident in Mogadishu that compelled
him to leave for SA. Appellant made an informed decision to move to
SA as
an adult. Appellant's family is currently residing in
Mogadishu. The Board finds that nothing happened to the appellant
that compelled
appellant to leave Mogadishu. Appellant did not
explain when, how & under circumstances the different tribes
wanted appellant
to join them. Appellant was only threatened to be
beaten when he refused to join the respective tribes. The appellant
never made
out a case to justify persecution on the grounds envisaged
in S3 of Act, 130 of 1998. Appellant throughout his case was silent
on the issue of his fear of being persecuted, be it the past, present
and or the future. The Board cannot exclude the possibility
that
appellant is an economic migrant. The perception is that people in SA
have better life & that SA is an economically viable
country to
reside in. It was a planned & calculated move on the part of the
appellant to come to SA during 2007. In the circumstance
the Appeal
Board finds that the appellant has not discharged the burden of proof
which rested on him. "
[27]
The
seventh applicant informed the RAB that he fled Somalia , in December
2009, because of the civil war, that his brother died
in the year
2007 as a result of the war between AI Shabaab and the
Government. The RAB recorded that the applicant stayed
for two years
in Somalia after the death of his brother and that nothing happened
to him during that time and that he never relocated
elsewhere in
Somalia during that time. It is also recorded that he stated that he
subsequently fled to Kenya, Mozambique, Zimbabwe
until he arrive d in
South Africa. The RAB recorded the following -
"The
appeal Board finds the appellant did not suffer persecution or harm
in terms of section 3 of the Refugee Act. The Board
further finds
that he does not have a well-founded persecution. The Appellant was
not compelled to leave his country of origin,
he managed to stay in
the same region after his brother's death in 2007 and nothing
happened to him. There is nothing from his
evidence which indicated
that he was persecuted in his country of origin. The Board finds that
he came to South Africa seeking
a better life. It is unlikely that
the appellant will face a reasonable possibility of harm or
persecution were he to return to
Somalia. The appellant on appeal
records can return safely to his country origin, there are areas
which are identified not to be
affected by civil war and are
government's control. "
[28]
In so far
as the eighth applicant is concerned the RAB recorded that in the DHA
form and RSDO' s notes this applicant stated that
there was a civil
war between Al-Shabaab and the Government since 2006, that her family
house was bombed and destroyed due to the
civil war, that her father,
brother and daughter were killed. She told the RAB that because of
the civil war she left Somalia and
went to Kenya, settling on the
border area between Kenya and Somalia for a period of two years
during which nothing happened to
her . She told the RAB that she left
Kenya because of the poor and unbearable living conditions and
starvation. The RAB recorded
that she stated that subsequent to
leaving Kenya during 2008, she went to Tanzania where she was
arrested and imprisoned for a
year and three months because she was
an illegal immigrant. The RAB further recorded that she stated that
in January 2010 , she
returned to Kenya and then went back to Somalia
arriving there in April 20 J 0. The RAB further recorded that she
stated that upon
her arrival in Somalia she noticed that there was
still instability although nothing happened to her upon her return.
Due to this
instability she decided to leave Somalia and travelled to
South Africa.
[29]
During her appeal hearing she stated that she came to South Africa to
seek protection. The RAB
recorded the following in respect of this
applicant -
"The
appellant claims that she was persecuted because of the civil war
that occurred in the year 2006, she claimed that her
life was in
danger. Her story lacks substance and she failed to demonstrate that
she was harmed or persecuted in any way. She has
merely relied on the
general instability in her home country but there is nothing which
shows a sustained and systematic violation
of her human rights. She
was in Kenya for a period of two years where nothing happened to her
and she left Kenya because of unbearable
living conditions and
starvation ...The Board finds that the appellant did not suffer
persecution or harm in terms of
section 3
of the
Refugees Act. The
Board further finds that she does not have a well-founded fear of
persecution. The appellant in April 2010, she availed herself
to the
protection of her country of origin when she went back to Somalia.
The Board finds that nothing happened to her upon return
to her
country of origin. She was not compelled to leave her country of
origin. The Board further finds that she stayed in Kenya
for a period
of two years and was given protection by that country. There is
nothing from her evidence which indicated she was
persecuted in Kenya
because of her nationality. She left Kenya because she was seeking a
better life for herself and her children.
It is unlikely that the
appellant will face a reasonable possibility of harm or persecution
if she were to return to Somalia. The
appellant on appeal records
there is nothing that indicates that she was either tortured,
physical attacked or arrested while she
was in her country during
2010. She can return safely to her country of origin, there are areas
which are identified not to be
affected by civil war and are under
government's control."
[30]
As far as
the ninth applicant is concerned the RAB recorded that he mentioned
that his mother died in 2008 and that he does not
know the
whereabouts of his father, that he had no education, did not belong
to a political party and was never arrested by Government
forces. The
RAB further recorded that this applicant herded camels when he lived
in Somalia and that he left due to the fighting
between AI-Shabaab
and Government soldiers. The applicant informed the RAB that he was
personally affected by the political instability
in Somalia when
AI-Shabaab and Government soldiers fought in the area where he was
herding camels, just outside Kismayo, but neither
he nor the camels
were harmed in that shootout.
[31]
The RAB
then, with reference to the version mentioned above' records -
"This
is in essence what compelled the appellant to leave his country of
origin. The appellant never made out a case to Justify
persecution on
the grounds envisaged in
S3
of Act, 130 of 1996. The appellant
throughout his case was silent on the issue of his fear of being
persecuted, be it the past,
present and or the future. There was no
link between the appellant's mother death & appellant's
relocation to SA more than
four years later. Appellant entered SA to
benefit from the rights afforded to refugees under the
Refugees Act,
130/1998
. Appellant fabricated his claim to fall within the
parameters of refugee law. In the circumstances the Appeal Board
finds that
the appellant has not discharged the burden of proof which
rested on him. The appellant's unwillingness to return to the
Somalia,
based on this factual enquiry, is not based on a
well-founded fear of persecution. Appeal Board accordingly finds that
the appellant
does not have a reasonable fear of persecution should
he return to the Somalia. The appellant when asked what would happen
to him
should he return to Somalia replied that the fighting problem
still exists even now in Somalia. The Appeal Board finds that the
appellant's case is not coherent and plausible & appellant
accordingly does not deserve to be given the benefit of the doubt.
"
Submissions
[32]
The applicants argue that the RAB adopted an overly restrictive
interpretation of
''persecution"
in applying the
section
3
(a) definition of refugee status. It was argued that the RAB made
political persecution the sole determinant of whether a case had
been
made out to consider the refugee status of each of the asylum
seekers. This, it was submitted rendered the RAB's approach
too
exceedingly narrow and unjustified.
Section 3
(a) provides -
"(3)
Subject
to Chapter 3, a person qualifies for refugee status for the purposes
of this Act if that person
-
(a)
owing
to a well-founded fear of being persecuted by reason of his or her
race, tribe, religion, nationality, political opinion or
membership
of a particular social group, is outside the country of his or her
nationality and is unable or unwilling to avail himself
or herself of
the protection of that country, or, not having a nationality and
being outside the country of his or her former habitual
residence is
unable or, owing to such fear, unwilling to return to it;..."
[33]
The applicants then argued that even if a person has not experienced
persecution,
section 3(b)
requires the RAB to determine whether the
applicant for asylum was compelled to leave their country of origin
due to
" external aggression, occupation, foreign domination
or events seriously disturbing or disrupting public order",
either in part or the whole of the person's country of origin.
Section 3
(b) provides -
"b)
owing to external aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order
in either a
part or the whole of his or her country of origin or nationality, is
compelled to Leave his or her place of habitual
residence in order to
seek refuge elsewhere..."
The
argument here is that the RAB only focussed on the
section 3
(a)
requirement and didn't consider whether the asylum seekers had
satisfied the
section 3
(b) requirements to qualify for asylum. The
applicants submitted that the RAB had failed to apply the expanded
definition of refugee
status under
section 3
(b) of the
Refugees Act.
[34
]
The applicants argued that
section 3
makes it clear that proof of
persecution under
section 3
(a) is not a necessary precondition for
refugee status. It was argued that in
Tshiyombo
v
Refugee
Appeal Board and Others
[9]
,
it
was found that it is not only political persecution that is required
to be shown to the exclusion of other grounds of persecution.
Further
reliance was placed on the decision in
Radjabu
v
Chairperson,
Standing Committee for Refugee Affairs and Others
[10]
,
to
the effect that it was fatal to the RAB's decision making process to
ignore
section 3(b)
of
the
Refugees Act. These
submissions are made by the applicants to
buttress their case that refugee status does not only hinge on proof
of persecution in
terms of
section 3
(a) but that even in the absence
of such proof, it was sufficient if the refugee applicant could show
that
section 3
(b)
was applicable. The applicants further rely on the decision of the
Supreme Court of Appeal (SCA) in
Abdi
and Another
v
Minister
of Home Affairs and Others
[11]
.
In
this case at para 27 the SCA said -
"[27]
By the same token, refusing a refugee entry to this country, and
thereby exposing her or him to the risk of persecution
or physical
violence in his home country is in conflict with the fundamental
values of the Constitution. "
This
statement of the law is important but it does not avail the
applicants of any basis to succeed in this matter. The asylum seekers
clearly failed to persuade the RAB that they were compelled to leave
Somalia due to persecution on any of the grounds listed in
section3
(a) or due to the circumstances mentioned in section3 (b).
[35]
I must at
the outset deal with the argument that the RAB applied a restrictive
interpretation to the term
"persecution"
as
in
section 3
(a). It is immediately apparent that when considering
each appeal, the RAB focussed on whether the asylum seekers were
personally
exposed to conduct amounting to persecution. The RAB
considered whether each of the asylum seekers was exposed to any
personal
threat or harm leaving them with no option but to flee
Somalia. lt is this approach that is criticised as an overly narrow
approach
to
"
persecution"
as
found in
section 3
(a). It is clear in the RAB's reasoning that it
considered whether each asylum seeker had at any stage faced any
personal threat.
It considered the situation in Somalia in so far as
it related to each applicant. In this regard the RAB considered if
the asylum
seekers had other family members living with them when
they decided to leave Somalia. The RAB also considered the situation
of
those family members who, in its view would have experienced
similar threats as alleged by the asylum seekers. The basis for this
approach is clear, if the civil war was the reason for the asylum
seekers to flee Somalia, clearly the violent circumstances presented
by that armed conflict cannot be selective, everyone living in the
affected area would have been under threat. The RAB's finding
that
the applicants failed to show that they were reasonably at risk of
harm in Somalia is based on the view that it cannot be
only the
asylum seekers who were exposed to risk but others living with them
there were unaffected. It was for this reason that
the RAB found that
there was no threat to the applicants' live s if they were to be
returned to Somalia. This finding is clearly
based on the evidence
presented by each asylum seeker before the RAB.
[34]
Clearly, in my view, the criticism of the RAB's approach is
misconceived. There is no foundation whatsoever
to the assertion by
the applicants' that the RAB applied a restrictive interpretation of
the term
" persecution."
The asylum seekers applied
as individual s and it is necessary that they provide a basis for why
each of them, in their personal
capacities, fled their country. In
the context of this case a generalised approach to the issue of
persecution is not the correct
yardstick. The applicants had to
persuade the RAB why they, as opposed to other s who were living with
them, felt the need to flee.
Clearly a personalised threat approach
to persecution is not misplaced and is necessary especially in this
case where there is
evidence that other family members’ of
these asylum seekers never fled and by all accounts are still living
in Somalia. What
these applicants failed to present was any
personalised threats they endured giving them no choice but to flee
Somalia. They also
failed to explain why they elected to leave
Somalia rather than relocate to other safer parts of that country. By
all accounts
it was the central and southern parts of Somalia that
were under Al-Shabaab onslaught. These are important considerations,
especially
the personal threat element, that cannot be ignored
especially in determining whether
section 2
is applicable.
Section 2
has a clearly discernible personal element to it. My view is that t h
is is not an overly restrictive interpretation of the
section 3
(a)
"
persecution".
It is either a person is facing persecution or
not. Properly considered,
section 2
is person focussed. ie. does the
particular person (refugee or asylum seeker) face any threat to his
or her life if he or she was
to be denied refugee status resulting in
them having to be returned to their country.
[35]
It is also misconceived to accuse the RAB of only deciding the asylum
seekers appeals on the basis
of the
section 3
(a) requirements only.
The applicants' submission suggests that the RAB never applied
section 3
(b). That this is misconceived is clear from the
circumstances set out above, relevant to each asylum seeker. The
recordal of the
RAB's conclusions and reasons regarding each
individual asylum seeker shows that the RAB was alive to the
applicability of both
legs of
section 3.
What is more telling being
that it is clear from each asylum seeker appeal that none of them
presented evidence showing that they
left Somalia due to
section 3
(b) factors i.e.
"external aggression, occupation, foreign
domination or events seriously disturbing or disrupting public order"
The common thread running through the asylum seekers cases was
that they le ft Somalia because of the civil war.
[36]
Whilst
the RAB used the term
"
persecution"
predominantly
in its reasoning, it is clear that it had both
section 3
requirements
in mind when it determined the appeals. The RAB was duty bound to
focus on the evidence presented to it regarding
each appeal. At the
end of the day it is this evidence that would determine which
decision was called for under the circumstances.
It was important and
necessary for the RAB to determine if personal safety was at issue
and to also determine that, absent political
persecution, whether the
asylum seekers were compelled to flee Somalia due to external
aggression or external occupation. The RAB
refers to
section 3
holistically in assessing the appeals, and this to me means that the
RAB considered the appeals through the lens of the entire
section. In
doing so the RAB didn't ignore any of the requirements in (a) and
(b). Itis clear that the RAB was alive to the need
to apply the
requirements of both subsections in considering the appeals. In each
of its decisions the RAB explicitly acknowledged
t he applicability
of
section 3
(a) and (b). It is clear from the record that the RAB
applied its mind to the facts before it and made a decision based
thereon.
It clearly had in mind both leg s of se c t ion 3 when it
considered the asylum seekers appeals and made its decision. Having
made
the explicit acknowledgement of the applicability of both legs
of the section, the RAB then assessed each individual appeal. In
doing so the RAB focussed on the particular facts and circumstances
as presented by each asylum seeker. It is also clear that the
RAB was
at all times alive to the implications of
section 2
i.e. the need not
to return the asylum seekers to Somalia if they faced certain
persecution, i.e. the
non
refoulement
scenario.
1 can find no plausible basis why this approach should be criticised.
[37]
Purely
considering the factual matrix relevant to each asylum seeker
considered by the RAB, it is apparent when considering the
RAB
decisions that it focussed on what each asylum seeker presented in
support of his or her appeal. ln respect of all the asylum
seekers
the RAB specifically referred to their reliance on a generalised
civil war basis as a reason why they left Somalia. They
failed to
mention any circumstance or fact that suggested that their personal
safety was at risk nor any that showed compulsion
forcing them to
flee Somalia. The second to fourth applicants sim ply asserted a
generalised civil war reason. The fifth applicant
also referred to
the civil war and mentioned that AI-Shabaab visited him and tried to
recruit him but he refused. On the basis
of this AI-Shabaab visit, he
decided to flee Somalia. The RAB found that this applicant did not
reveal any facts suggesting that
he fled Somalia due to
"events
seriously disrupting and/or disturbing the public order in
Mogadishu".
The
RAB further found that the once off attempt by Al-Shabaab to recruit
him did not compel him to nee Somalia . The seventh applicant
had
actually stayed in Somalia for some two years after his brother was
killed and left for South Africa even though nothing in
the form of
persecution or compulsion to leave had intervened. The ninth
applicant had decided to leave based on a single firefight
between
AI Shabaab and Government forces during which he wasn't hurt not
any of the camels he was tending. Clearly the RAB
found that the
asylum seekers never mentioned any circumstance suggesting
persecution or being compelled to flee or forced out
of Somalia.
[38]
ln
respect of the eighth applicant the RAB focussed on the fact she left
Somalia and stayed in Kenya for some two years and then
went to
Tanzania. From Tanzania she returned to Somalia and suffered no
persecution whatsoever. She simply decided that it was
still unsafe
and then left for South Africa. Clearly this is another case where
the RAB considered her appeal through the lens
of
section 3
holistically and found that she had not made outa case that entitled
her to refugee status in South Africa. This applicant simply
presented no evidence showing that her personal safety was at risk
through persecution and/or was compelled to leave Somalia through
external aggression or occupation. The RAB can also not be faulted on
any basis for finding that this applicant enjoyed the protection
of
Kenya and her own country Somalia when she went back. In the case of
the ninth applicant his situation is simply that he was
a camel
herder and the closest he came to violence was when there was a clash
between Al Shabaab operatives and Government forces
in the same area
where he was herding camels. He was not injured nor was he the target
of the clashing forces. At no stage was
he ever personally targeted
for recruitment or violence. Clearly the RAB cannot be faulted for
finding that these applicants suffered
no persecution nor were they
compelled or forced to flee Somalia . They simply decided to leave
Somalia and come to South Africa.
This suggests that it was their
choice to simply leave Somalia when they did and that they were not
compelled to leave due to external
or internal aggression.
[39]
The
arguments advanced by the applicants seek to straightjacket the RAB
when dealing with refugee appeals involving Somali asylum
seekers.
This approach would effectively take away the effectiveness of the
RAB. This approach would mean that there should be
a blanket approach
to all Somali nationals who have left Somalia to the Republic of
South Africa and that all of them should be
granted asylum simply by
mentioning the civil war. If that were so, the role of the
Refugees
Act, would
become superfluous and the RSDO function would cease. This
approach would entail that anyone coming from Somalia in particular,
would simply have to allege that there is civil war in Somalia and
that he or she felt threatened hence the flight to South Africa.
This
cannot be. The RAB has an important function to play in assessing and
determining refugee appeals. Courts should be careful
and avoid
trying to dictate to the RAB how it should undertake its functions.
[40]
It is necessary to also restate some of the key principles applicable
in reviews of this nature. It
must be emphasized at the outset that
the overriding principle in review applications is that Courts must
show deference to entities
created to perform specific and specialist
functions when reviewing their decisions. Courts should not
substitute their opinions
for those of tribunals such as the RAB, in
whom the decision making powers regarding refugee appeals, has been
vested. In review
proceedings deference towards statutorily
established entities, such as the RAB, and their institutional
specialist nature, is
essential. This will include the recognition of
administrative expertise and knowledge within the sphere of policy
formulation
and decision making. This principle ensures that Courts
desist from laying down hard and fast rules for administrative
tribunals
when performing their functions. In the same vein it is not
open for Courts, when called upon to review decisions of
administrative
tribunals, to expect such tribunals to operate as if
they are Courts of law. The role of Courts is to determine if the
impugned
decisions of such bodies are lawful and rational.
[41]
ln this
matter the yardstick is whether it is apparent in the determinations
of the RAB that it failed to apply the requirements
of one or both
legs of
section 3.
The cases of
Tshiyombo
and
Radjavu
are
relevant in so far as they enunciate the law that both
section 3
(a)
and (b) requirements must be considered when determining an asylum
seeker's appeal. However insofar as those decisions seek
to dictate
to the RAB how to undertake its functions, I respectfully differ and
will not go down that path. This is clearly disavowed
in
authoritative decisions of our apex Court in particular. It is not
for the Courts to dictate to the RAB how it should perform
its
functions, it is the legislatively ordained entity with the
responsibility to determine these issues. Courts must show respect
for the legislative design which creates a specialist body such as
the RAB to undertake the task of adjudicating refugee appeals.
[42]
Therefore,
Courts of law cannot and should not seek to impose their opinions and
views on the correctness or otherwise of decision
s of administrative
functionaries. Although it is the function of the Court to control
the exercise of administrative power, the
question is how far this
control should extend. The Supreme Court of Appeal in
Logbro
Properties
CC
v
Bedderson
NO and Others
[12]
,
warns
against the adoption of unbridled judicial activism, and held that a
judicial officer must demonstrate:
"[21].
..a judicial willingness to appreciate the legitimate and
constitutionally- ordained province of administrative agencies
to
admit the expertise of those agencies in policy laden or
polycentric issues; to accord their interpretation of fact and
law
due respect; and to be sensitive in general to the interests
legitimately pursued by administrative bodies and practical and
financial constraints under which they have to operate. This type of
deference is perfectly consistent with a concern for individual
rights and a refusal to tolerate corruption and maladministration
action, but by a careful weighing up oft he need for and the
consequences of - judicial intervention".
[43]
In
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and
Others
[13]
,
Chaskalson
P said -
"[89]...
The
selling of this standard does not mean that the Courts can or should
substitute their opinions as to what is appropriate for
the opinions
of those in whom the power has been vested. As long as the purpose
sought to be achieved by the exercise of public
power is within the
authority of the functionary, and as long as the functionary's
decision, viewed objectively, is rational
,
a
Court cannot interfere with the decision simply because it disagrees
with it or and considers that the powers exercised inappropriately".
[44]
In
Gauteng Gambling Board v Silverstar Development Ltd and Others
[14]
,
the
SCA remarked:
"[29]An
administrative functionary that is vested by statute with the power
to consider and approve or reject an application
is generally best
equipped by the variety of its composition, by experience, and its
access to sources of relevant information
and expertise to make the
right decision. The Court typically has none of these advantages and
is required to recognise its own
limitations"
The
RAB is a statutory body which performs its functions impartially and
independently and in accordance with the dictates of fairness
and the
law.
[45]
The is sue is not whether RAB is thought to be wrong. It is whether
it has acted unlawfully because
it has not comp lie d with the
Refugees Act to
the level required. ln
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism
and Others v
Bato Star Fishing (Pty) Ltd
[15]
,
the SCA said -
"[51]...[F]or
the reason stated by Chaskalson Pin Bel Porto in para [45] at 282 F-G
(distinguishable) 'The fact that there
may be more than one rational
way of dealing with a particular problem does not make choice of one
rather than others an irrational
decision. The making of such choices
is within the domain of the Executive. Courts cannot interfere with
rational decisions of
the Executive that have been made lawfully, on
the grounds that they consider that a different decision would have
been preferable'
."
[46]
In
Bato
Star Fishing (Pty) Ltd
v
Minister
of Environmental Affairs and Tourism and Others
[16]
,
the
Constitutional Court stated:
"[48]
In treating the decisions of administrative agencies with appropriate
respect, a
Court is recognizing the proper role of the Executive
within the Constitution. In doing so a Court should be careful not to
attribute
to itself superior wisdom in relation to matters entrusted
to other branches of government. A Court should thus give due weight
to findings of fact and policy decisions made by those with special
expertise and experience in the field. The extent to which
a Court
should give weight to these considerations will depend upon the
character of the decision itself, as well as on the identity
of the
decision maker. A decision that requires equilibrium to be
struck between a range of competing interests or considerations
and
which is to be taken by a person with specific expertise in that area
must be shown respect by the Courts".
[47]
It is
clear in the submiss ion of the applicants that they also see k to
have the RAB determinations reviewed and set aside as they
are wrong.
This is not the acceptable yardstick in the review of administrative
functionaries such as the RAB. It is not open for
Courts of law when
hearing review applications against administrative action to position
themselves as umpires of what is right
or wrong about the
administrative action at stake. This cannot be countenanced within
the framework of our Constitution and it
does not bode well for the
role and responsibilities of administrative tribunals. This in a way
will box these important administrative
bodies into following a tick
box approach, fashioned by Courts. At the end of the day the issue
that Courts should consider is
whether the administrative body whose
decision is under scrutiny, has brought its mind to bear on all the
material before it and
rendered a decision that is fair, just and
rational.
[48]
ln the
final analysis, the issue in such matters is whether the RAB's
determinations are clearly deficient in respect of the section
3 (a)
or 3 (b) requirements. The evidence placed before the RAB and relied
on by the asylum seekers is clear that all of them left
Somalia
because of the civil war. It is clear further that RAB adopted a
holistic approach to section 3 when determining the applicants'
appeals. What is also clear is that the asylum seekers did not
provide any evidence showing or demonstrating personal persecution
presenting a threat to their lives. Nor did they present evidence
demonstrating that they faced compulsion to flee Somalia, presented
by external forces. Clearly these applicants did not persuade the RAB
that they were entitled to asylum on both of section 3 requirements.
Perhaps it is instructive to consider the submission that the RAB
committed an error of law in how it approached the asylum seekers
appeals i.e. allegedly applying only section 3 (a) and ignoring
section 3 (b). I have already found that this is not so, on the
basis
of what is in the record and how the RAB reached its decisions. In
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
[17]
the court
held:
"[91]
a mere error of law is not sufficient for an administrative act lo be
set aside. Section 6(2)(d) of [PAJA] permits administrative
action to
be reviewed and set aside only where it is 'materially influenced by
an error of law. Clearly an error of law is not
material if it does
not affect the outcome of the decision. This occurs if, on the facts,
the decision-maker would have reached
the same decision despite the
error of law."
This
decision has been upheld by the Constitution a l Court in
Minister
of Local Government, Environmental Affairs and Development Planning
o/t/ze Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and
Others
[18]
and
more recently in
Business
Zone JOJO CC t/a Emmarentia Convenience Centre v
Engen
Petroleum Limited and Others
[19]
.
[49]
The second common error asserted by the applicants is that in
determining refugee status the
RAB applied the wrong test regarding
the burden of proof. In this regard the applicants argue that the RAB
consistently applied
the wrong burden of proof, by ignoring its
"shared burden." It was argued in this regard that the RAB
placed the burden
of proof squarely and exclusively on the shoulders
of the asylum seekers, akin to the burden of proof in civil
proceedings. This,
it was argued was a further reviewable
irregularity. It is ill conceived to suggest that applicants have a
shared burden with the
RAB regarding proof of refugee status
eligibility. It is the applicants who seek refugee status and it is
upon them to persuade
the RAB that they are entitled to refugee
status. Clearly the burden on proof rests on the applicants to
establish his. The burden
of proof does not change and neither has it
been altered by the Courts.
[50]
The
applicants have clearly misquoted or misinterpreted the passage
reproduced in paragraph 196 of the UNHRC Handbook. This passage
does
not at all altar the legal burden of proof which rests with the one
who alleges. ln fact, it says so in the first two Iines
of the
passage. It is correct that the handbook states that there is a duty
to ascertain and evaluate all relevant facts which
is the shared
responsibility of the applicant and the examiner. That does not mean
that the burden of proof regarding refugee status
eligibility is now
shared. What is shared is the responsibility to put all the relevant
facts before the RAB which is then required
to provide information at
its disposal and conduct research in respect of the state of affairs
in the country of origin of the
applicant. However , at the end of
the day, the burden of proof still rests with the applicant and not
with the RAB. It is correct
that the RAB has a duty to gather
information should this be necessary . Information gathering is done
when it becomes apparent
that such information could assist in
deciding the application or appeal. An asylum seeker has the burden
of placing the necessary
facts before the RSDO or RAB why he/she
should be granted asylum. Failure to present a case that entitles an
asylum seeker asylum
cannot be cured by the RAB, in this instance,
coming with its own facts why asylum should be granted.
It
cannot
be said in this case that the asylum seekers presented appeals that
required the RAB to look for further or other facts.
The fact of the
matter is that the asylum seekers presented cases that lacked any
substance regarding their qualification or entitlement
to refugee
status in South Africa. There is therefore no merit to the submission
of the applicants that the burden of showing entitlement
to asylum
status was shared between them and the RAB.
[51]
The third
commo n error attributed to the RAB was that it applied the test to
credibility as if it was hearing a civil claim in
a Court of law. It
was argued by the applicants that Courts have he l d that credibility
is but one factor in the evaluation of
evidence and must be
considered alongside the reliability of the evidence and the inherent
probabilities. Reference was made to
the
Tantoush
v Refugee Appeal Board and Others
[20]
decision
, where the Court noted the following in respect of an asylum- seeker
who had previously been untruthful:
"[T]he
fact that a witness has been untruthful on one or other aspect on
another occasion does not mean that he was untruthful
in relation to
the enquiry at hand, or that his entire testimony should be rejected
on account of any admitted untruth. The credibility
and reliability
of his testimony for the purpose of establishing whether he has a
well-founded fear of persecution must be weighed
looking at the
inherent probabilities, the presence or absence of external or
internal contradictions, its consistency or otherwise
with the other
evidence, his candour and overall performance in testifying, and so
on.
Reference
was also made to the UNHCR Handbook that credibility should be
resorted to in the absence of external evidence supporting
an
applicant's case. This argument has no merit. The RAB found that it
could not believe the applicants on their versions that
they were
personally at risk and that they were forced to flee Somalia. In
fact, where the RAB made credibility findings this is
borne out by
the facts before it. The applicants' submission suggest that the RAB
shouldn't have paid any attention to that aspect.
This cannot be and
I fail to find a basis that gives a Court the latitude to dictate to
the RAB, as the specialist appellate tribunal
in refugee status
determination matters, how to assess the material placed before it
especially where the issue of credibility
features. On the objective
facts before it, the RAB found inconsistencies and it was entitled to
consider them and their impact
on its decisions. That Courts may
approach those same issues differently is no acceptable yardstick to
set aside the decisions
of the RAB which are contrary to those of the
Courts.
[52]
The
fourth common error attributed to the RAB was that it adopted a
procedurally unfair process when it considered the asylum seekers
appeals. The argument in this regard was that Section 3 (1) of PAJA
provides that any administrative action which materially and
adversely affects rights or legitimate expectations must be
procedurally fair. It was pointed out in this regard that the
dismissal
of an appeal by the RAB impacts the rights of
asylum-seekers . For this reason it was argued that while procedural
fairness depended
on the circumstances of each case,
[21]
sect ion
3 (2) (b) of PAJA prescribes certain prerequisites of fairness. An
important prerequisite, it was argued was the that the
audi
alteram
principle
must be observed whenever the RAB has to decide an appeal by an
asylum seeker. The argument was that an asylum seeker
was entitled to
be granted a reasonable opportunity to make representations before a
decision was taken regarding his/her appeal.
To buttress this
argument, it was point ed out that there was no indication on the
record that any country of origin evidence was
considered by the
members of the RAB and also put to the asylum seekers. This , it was
submitted, displayed a serious reviewable
procedural irregularity by
the RAB. It is clear from the factual matrix regarding each asylum
seeker that the RAB committed no
procedural irregularity when dealing
the appeals . The asylum seekers were each provided with ample
opportunity to participate
in their appeal hearings. They were
allowed to present their cases and to answer any questions that
arose. The country of origin
information argument is misplaced. There
was no need on the RAB to confront the asylum seekers with country of
origin in formation
as the asylum seekers ' failed on their own to
come up with substantive bases justifying the grant of refugee stat
us. They presented
hopelessly inadequate cases and the RAB can
therefore not be faulted for denying them refugee status.
[53]
The applicants also assert that procedurally the RAB's decisions
deserve to be set aside on the
ground s of the alleged insistence by
the RAB that asylum seekers supply their own interpreters is unfair
and has rendered the
decision procedurally deficient. The applicants
rely on the decision in
M
v
Minister
of Home Affairs
[22]
,
which
suggested that it is a fundamental right to be afforded
interpretation services in a language one under stands. In this case
all the applicants were assisted by their own interpreters during the
appeal hearing s before the RAB. There can therefore be no
suggestion
of any prejudice to any of them due to lack of interpretation
services.
[54]
The applicants have failed to show any basis on which the decision s
of the RAB should be reviewed
and set aside by this Court. Theirs was
an attempt at bringing an appeal under the guise of a review
application. Their whole basis
was that that the RAB decision making
process is fraught with error. It has been exhaustively shown that
that no such error is
present and further that the fact based
approach of the RAB in this matter led to just and equitable
decisions being made in each
case. It goes without saying that no
case has been made for a structural interdict in this matter.
[55]
With regard to the question of costs, l'm mindful of the injunction
in the
Bio
Watch Trust
v
Registrar
Genetic Resources and Others
[23]
case
not
to visit losing parties with costs where they assert Constitutional
rights. This case deals with important question s of Refugee
law
underpinned by the Constitution. For this reason and exercising the
discretion I enjoy on such issues, I find that an appropriate
order
as to costs is that each party must bear its own costs.
[56]
In the circumstances the following order is granted -
1.
The
application for condonation by the applicants is granted.
2.
The
application for review is dis missed.
3.
Each
party is ordered to pay its own costs.
D
MLAMBO
Judge
President, Gauteng
Division
of the High Court of
South
Africa, Pretoria
Heard
on:
20
June 2017
Date
of Judgment:
30
January 2019
Representation
for the Applicants:
Counsel:
Adv. N.C. Ferreira
Adv
Chris McConnachie
Thulamela
Group of Advocates
Instructed
by:
Lawyers for Human Rights
Ref:
Kayan Leung
Tel:
0113391960
Representation
for the Respondents:
First
and Second Respondents
Adv.
S. M. Lebala SC
Adv.
L. Mboweni
Third
and Fourth Respondents
Adv.
W. R. Mokhari SC
Adv.
M. P. Mdalana
Duma
Nokwe Group of Advocates
Instructed
by:
The State Attorney
Salu
Building , Ground Floor
Ref:
9027/20 l 5 /Z26 / ML
Enquiry:
L. M. Letsholo
[1]
(CCT 02 /18)(2018) ZCAA 52 (20 December 2018).
[2]
Section 24 (3) (c) "(3) The Refugee Status Determination
Officer must at the conclusion of the hearing-
(a)
...
(b)
...
(c)
reject the application as unfounded ; or..."
[3]
2008 (2) SA 472 (CC).
[4]
33. (1) Just administrative action. - Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
[5]
C Hoexter,
Administrative Law in South Africa
2
nd
ed (Juta & Co Cape Town 2012), p 253.
[6]
C Hoexter, footnote 4, p 253.
[7]
2012 JDR 2298 (CC) at para 29.
[8]
RAB hearing notes.
[9]
2016 (4) SA 469 (WCC).
[10]
[2015] 1 All SA 100
(WCC) at para 6.
[11]
2011 (3) SA 37
(SCA).
[12]
2003 {2) SA 460 (SCA).
[13]
2000 (2) SA 674 (CC).
[14]
2005 (4) SA 67 (SCA).
[15]
2003 (6) SA 407 (SCA).
[16]
2004 (4) SA 490 (CC).
[17]
2004 (4) SA 490 (CC).
[18]
2014 (1) SA 521(CC)
at para 67.
[19]
2017 (6) BCLR 773
(CC) at para 84.
[20]
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T) at para 102
[21]
PAJA,
section 3(1)(a).
[22]
[2014] ZAGPPHC 649 (22 August 2014).
[23]
2009 (6) SA 232
(CC).