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[2016] ZAGPPHC 114
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Muyaya v Chairman: The Refugee Appeal Board and Others (2137/2014) [2016] ZAGPPHC 114 (1 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG DIVISION, PRETORIA
)
CASE NO: 2137/2014
DATE:
1/4/2016
Not
reportable
Not of
interest to other judges
Revised
IN THE MATTER BETWEEN
BIBICHE MBUYI
MUYAYA APPLICANT
AND
CHAIRMAN: THE REFUGEE APPEAL
BOARD 1
ST
RESPONDENT
REFUGEE STATUS DETERMINATION OFFICER
(G M
MASHILOANE) 2
ND
RESPONDENT
THE MINISTER OF HOME
AFFAIRS 3
RD
RESPONDENT
THE DIRECTOR-GENERAL: DEPARTMENT OF
HOME
AFFAIRS 4
TH
RESPONDENT
JUDGMENT
MSIMEKI, J
[1] Applicant, in this application, seeks an order as follows:
"1. Reviewing and setting aside the decision of the first
respondent to dismiss the applicant's appeal made on 17 May 2013;
2. Reviewing and setting aside the decision of the second respondent
not to grant the applicant refugee status made on 20 July
2006;
3. An order declaring that the applicant is a refugee and that she
has a right to refugee status in South Africa and directing
the
respondents to grant her refugee status within one week of service of
the Court's order and to deliver formal notification
or confirmation
of such in writing to the applicant's attorneys within two weeks
thereof;
4. In the alternative to prayer 3, directing that the applicant's
appeal in her asylum application be referred back to the first
respondent to be heard
de novo
or with such directives as
the Honourable court deems appropriate in the circumstances;
5. Ordering the respondents to pay the costs of this application in
the event that they oppose the application;
6. Further and/or alternative relief."
The application is opposed by respondents.
BRIEF BACKGROUND FACTS
[2] Applicant is an asylum seeker from the Democratic Republic of
Congo ("DRC"). A mother of children, one
of whom
was born in South Africa, she was born on 23 January 1979.
Documents reflect different places as her place of
birth. She
attributes this to her failure to understand English when she arrived
in South Africa. She applied for asylum
and refugee status in
South Africa. This entailed her having to attend interviews
with a Refugee Reception Officer ("RRO"),
Refugee Status
Determination Officer ("RSDO") and finally appearing before
the Refugee Appeal Board ("RAB").
The RSDO refused to
grant applicant asylum and refugee status. Applicant then
appealed against the refusal to the Refugee
Appeal Board. The
RAB confirmed and upheld the RSDO's decision and dismissed
applicant's appeal. Applicant, after her
appeal against the
decision of the RSDO was dismissed, brought this review application
which is opposed by respondents. The
application serves before
me.
[3] The RSDO was Ms G M Mashiloane ("Mashiloane") while the
chairman of the RAB was Mr M M Mohale ("Mohale").
[4] It is important to note that applicant's application for asylum
and refugee status had been brought in terms of sections 3(a)
and (b)
read with section 24 of the Refugees Act 130 of 1998 ("the
Refugees Act"
;).
[5] Mashiloane found that applicant did not have a "well-founded
fear" for persecution when she made the application.
Applicant, according to her, bore the burden of proof to show that
"she is entitled to refugee status". The standard
of
proof, according to her, was "that of real risk" which had
to be considered "in the light of all the circumstances
surrounding the applicant's claim".
[6] Her finding, effectively, was that applicant never considered
"making internal relocation in other parts of DRC".
Applicant, in her view, "should have considered to make internal
relocation in DRC before she left her country to RSA to arears
which
are under government control". The conclusion was:
"In light of the above information your application is rejected
as unfounded. Your fear is not well-founded and therefore
you
do not meet the criteria to qualify as a refugee."
[7] Mr Slabbert, for applicant, in the review application, submitted
that the standard applied by Mashiloane was incorrect as the
correct
one ought to have been one of "reasonable possibility of
persecution". The correct test, according to him,
was
applied in the case of
Tantroush v Refugee Appeal Board and Others
2008 1 SA 232 at [97] in which reference is made to
Immigration
and Naturalisation Service v Cardoza-Touseca
480 US 421 (1987) at
440. See also
Fang v Refugee Appeal Board and Others
2007 2 SA 447 (T) and
Van Garderen NO v Refugee Appeal Board
(unreported decision, TPD case number 30720/2006 of 19 June
2007).
[8] Mohale handed down the RAB's decision on 17 May 2013.
He dismissed applicant's appeal for the sole reason that he
held the
view that there were "material credibility concerns" in
applicant's evidence. He found applicant's evidence
incredible
due to "inconsistencies" between her evidence during her
appeal hearing and her evidence during her three
initial interviews.
[9] The nub of the matter, according to Mr Slabbert, was that
applicant had provided some further detail not covered by her
Eligibility
Determination Form ("EDF"). This, he
submitted, had been caused by improper interpretative assistance that
applicant
received during the interviews. Applicant's
explanation for her seeking asylum, according to him, remained the
same as that
recorded in her initial application, namely that she had
feared for her life and safety as a result of the outbreak of ethnic
and/or
political violence. He did not see any contradictions in
applicant's versions which he saw as further elaboration on
circumstances
surrounding her decision to flee the DRC and seek
refugee status in South Africa. Further, as he submitted, the
difference
regarding her place of birth had been occasioned by the
improper interpretation as applicant, at the time, did not know
English.
She could only speak French, Lingala and Swahili.
Use, at the time, was made of lay interpreters, friends and relatives
whose
knowledge of English had not been perfect. Mr Slabbert
regards the inconsistency relating to applicant's place of birth
as
of no consequence.
[10] Applicant was represented before the RAB. Heads of
argument which, according to Mr Slabbert, were not considered
when the appeal was heard, were provided. Mr Slabbert
submitted that little to no consideration at all was given by
Mohale
in his ruling to the actual inconsistencies that he relied on when he
reached the adverse conclusions regarding applicant's
credibility or
their materiality to applicant's case. The inconsistencies, as
he saw them, related to "inconsistencies
in recounting
peripheral details that did not go to the heart of the applicant's
case". "A cursory credibility
analysis on
peripheral points", according to him, was elevated to a level of
importance out of all proportion.
[11] Mr Slabbert submitted that there was procedural unfairness;
failure to consider relevant facts; errors of law;
unconstitutionality
and general unlawfulness as well as the fact that
the RAB had been improperly constituted. He held the view that
if the RAB
had been improperly constituted, that in itself would be
dispositive of the matter because its decision would have been null
and
void as the RAB would have acted
ultra vires
.
I agree and this seems to be common cause.
[12] Mr Slabbert submitted that any decision to deport applicant and
her children back to the DRC would infringe several of her
and her
children's constitutionally entrenched rights and would, eventually,
contravene South Africa's international law obligations
and would be
unlawful. He finally, on the basis of reasonable
apprehension of bias and inordinate delays, implored the
court to
substitute its own decision for the decisions of the relevant
authorities and not refer the matter back to "dilatory
officialdom".
[13] In short, applicant's grounds of review, according to Mr
Slabbert, are:
1. the improper constitution of the RAB;
2. procedural unfairness;
3. failure to consider relevant facts and errors of law; and
4. unconstitutional and general unlawfulness.
[14] Mr Bofilatos SC, for respondents, on the other hand, held the
view that applicant's application ought to be dismissed with
costs.
In the alternative he submitted that the court ought to refer the
matter back to the RAB for reconsideration and reserve
the costs
pending the outcome of the decision of the RAB.
[15] It was Mr Bofilatos' view that the language had not been any
problem as no one had complained about it. The improper
constitution of the RAB had not been dealt with in the founding
affidavit but only in the replying affidavit. The court would
not be acting properly, according to him, in the event that it
decided to entertain the improper constitution of the RAB.
I do
not agree. The issue, as Mr Bofilatos correctly submitted,
was raised in the replying affidavit by applicant.
I also
do not think that this is a case where the court ought to be barred
from raising the issue
mero motu
.
[16] Mr Bofilatos submitted that it could not be correct that
applicant and her interpreters could not communicate properly.
He bases his submission on the fact that the interpreters would not
be able to suck from their thumbs the information that they
communicated to the relevant officers unless they got the information
from applicant.
[17] It was further Mr Bofilatos' submission that issues not raised
and canvassed in pleadings and affidavits ought not to be
considered. The result would be that applicant's application
would be liable to be dismissed with costs.
[18] It is important to first determine if the RAB was properly
constituted. This, indeed, disposes of the matter should
I find
that the RAB was not properly constituted. This, in that
event, would render it unnecessary to even have
to consider the other
issues that have been raised.
[19] It is perhaps also important to refer to sections 3(a), (b) and
(c) of the Refugees Act 130 of 1998 ("the
Refugees Act"
;) on
which applicant based its application for asylum and refugee status.
A person, in terms of
section 3
of the
Refugees Act, qualifies
for a
refugee status for the purposes of the Act if he/she:
"(a) owing to a well-founded fear of being persecuted by reason
of his or her race, tribe, religion, nationality, political
opinion
or membership of a particular social group, is outside the country of
his or her nationality and is unable or unwilling
to avail himself or
herself of the protection of that country, or, not having a
nationality and being outside the country of his
or her former
habitual residence is unable or, owing to such fear, unwilling to
return to it; or
(b) owing to external aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order in either
a
part or the whole of his or her country of origin or nationality, is
compelled to leave his or her place of habitual residence
in order to
seek refuge elsewhere; or
(c) is a dependant of a person contemplated in para (a) or (b)."
THE CONSTITUTION OF THE RAB
[20]
Section 24
of the
Refugees Act provides
that where the RSDO
refuses refugee status and asylum on the basis that the application
is rejected as "unfounded" or
"manifestly unfounded"
an applicant whose application it so rejected, has a right to lodge
an appeal with the RAB.
[21] In terms of
section 13(1)
read with
section 15(5)
of the
Refugees Act:
"1. The
Appeal Board
must consist of a chairperson and at
least two other members
appointed by the Minister with regard to
a person's suitability to serve as a member by virtue of his or her
experience, qualifications
and expertise and his or her capability to
perform the functions of the Appeal Board properly.
2.
At least one of the members of the Appeal Board
must be
legally qualified." (My emphasis.)
[22] How the Appeal Board goes about doing its work is guided by
section 26
of the
Refugees Act. The
section determines how an
asylum seeker whose application has been rejected lodges an appeal to
the RAB. The procedure that
the RAB must follow before it
reaches its decision to set aside or substitute any decision of the
RSDO is set out in
section 24(3).
In terms of
section 26(4)
"the Appeal Board must allow legal representation upon request
of the applicant".
[23] Murphy J in
Tantoush v Refugee Appeal Board and Others
2008 1 SA 232
(T) in paragraph [86], on the basis of
section 12(3)
of
the
Refugees Act, noted that
the RAB has to function without bias and
independently.
[24] The constitution of the RAB was a subject of consideration in
Heverimana v Chairperson, Refugee Appeal Board and Others
2014
5 SA 550
(WCC). There the RAB had consisted of one member, the
second respondent, when the appeal was dismissed on 3 November
2011. The submission, on behalf of the respondents, had been
that although
section 13(1)
provided that the RAB "must consist
of a chairperson and at least two other members" that in no way
meant that "all
had to sit at any one appeal hearing" and
that "to the extent that
section 13(2)
provided that at least
one of the members must be legally qualified", "first
respondent, the legally qualified member,
had monitored the decision
of second respondent". Davis J rejected both
submissions. On the basis that
sections 13(1)
and
13
(2)
are unambiguous and very clear I fully agree with the decision
of Davis J in rejecting the submissions.
[25]
Section 15
of the
Refugees Act provides
that the chairperson of
the RAB convenes the meetings of the RAB and the majority of members
constitute a quorum. This, according
to Davis J, implies that
at least two persons have to be present for a quorum to be
constituted. I agree. Davis J,
as a result, ruled that
the RAB's decision "on 11 November 2011 was legally
invalid, because it was not properly
constituted".
Consequently the decisions of the first and second respondents of 3
November 2011, dismissing applicant's
appeal against third
respondent's decision and rejecting applicant's application for
refugee status and asylum as unfounded and
third respondent's
decision of 2 August 2008, rejecting applicant's appeal for
refugee status and asylum were reviewed and
set aside.
[26] It must be remembered that
section 13(1)
of the
Refugees Act is
peremptory. As shown above, an improperly constituted RAB is
incapable of taking valid decisions.
[27] What I have found quite remarkable is that Mohale sat alone in
Heverimana v Chairperson, Refugee Appeal Board and Others (supra)
.
[28] The purported RAB hearing took place on 16 April 2013.
Mohale handed down a written decision (the RAB's decision) on
17 May
2013. This was when he dismissed applicant's appeal. The
record of proceedings and the written decision reveal
that the panel
which heard applicant's appeal consisted of one member only, namely
M M Mohale.
[29] I indicated earlier on that it was clear that if I found that
the RAB was not properly constituted, that in itself, would
be
determinitive and dispositive of the matter. Clearly documents
demonstrate that Mohale was the sole member of the RAB
when the
appeal received attention. It cannot therefore be said that the
decision that he took on his own was valid.
It was clearly
ultra vires
because
sections 13(1)
and
13
(2) of the
Refugees
Act were
not complied with. For this reason alone the decision
must be reviewed and set aside.
[30] It is not necessary, as I have already indicated, to deal with
the other issues that were raised. The RAB has not acted
and
must act.
[31] Mr Bofilatos submitted that the application ought to be
dismissed with costs and that applicant could bring another
application
at a later stage. In the alternative, he submitted
that the matter could be referred back to the RAB for
reconsideration.
The application cannot be dismissed
because the RAB did not act. Its action is
ultra vires
and null and void.
[32] The decision of the RAB of 17 May 2013, in my view, dismissing
applicant's appeal should be reviewed and set aside.
Further,
applicant's appeal in her asylum application should be referred back
to first respondent to be heard
de novo
.
Respondents, in my view, should pay the costs of this application.
ORDER
[33] The following order is made:
1. The decision of the first respondent on 17 May 2013, dismissing
applicant's appeal, is hereby reviewed and set aside.
2. Applicant's appeal in her asylum application is hereby referred
back to first respondent to be heard
de novo
.
3. Respondents are ordered to pay the costs of this application.
M W MSIMEKI
JUDGE OF THE GAUTENG DIVISION, PRETORIA
HEARD ON: 28 JULY 2015
FOR THE APPLICANT: ADV J P SLABBERT
INSTRUCTED BY: CLIFFE DEKKER HOFMEYER INC
FOR THE RESPONDENTS: ADV G BOFILATOS SC
INSTRUCTED BY: THE STATE ATTORNEY, PRETORIA